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Series. 


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HOR^  JURIDIC^  SUBSECIViE. 


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QUARE  quis  tandem  mc  reprehcndat,  si  quantum  caetc- 
vis  ad  iestos  dies  ludorum  cclcbrandos,  ciuantum  ad  alias  vo- 
luptate-i,  cl  ud  ipsam  rcciuicni,  animi  et  corporis  conceditur 
temporis :  (luantum  alii  tcmpestivis  conviviis  quantum  ale», 
quantum  pilx,  tantum  mihi  egomet,  ad  hxc  studia  recolenda, 
sumpsero.  Cic.  fir o  Ar chid. 

LE  cliangement    d'etude  est  toujours  un  delassement 
pourmoi.  D'Jguesseau. 


61 


ntum  cxtc- 
ail  alias  vo- 
i  conceditur 
antum  ales* 
X  rccolcnda) 
)  Archid. 

delassemeni 
xueaacau. 


mmmmmmmmKMH$i 


Farrand  &  Co's  Premium  Edition, 


HORiE  JURIDIC^  SUBSECIV^: 

A  CONNECTED  SERIES  OF  NOTES, 

RESPECTING  THE 

GEOGRAPHY,  CHRONOLOGY  AND  LITERARY  HISTORY  OF  THE 
PRINCIPAL  CODES  AND  ORIGINAL  DOCUMENTS 

OF  THE 

Grecian*  asioman^  ftv^ni  anH  Canon  iM. 


BY  CHARLES  BUTLER,  ESQ. 
OF  Lincoln's  inn. 


WITH  ADDITIONAL  NOTES  AND  ILLUSTRATIONS 

BY  AN  EMINENT  AMERICAN  CIVILIAN. 


Est  quddam  prodire  temis,  si  non  datur  ultra.  Hok. 


PHILADELPHIA: 

PUBLISHED  BY  WILLIAM  P.  FARRAND  AND  CO 
1808. 


I:       i 


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;<«■«- i>J5&.^i"--- 


District  or  Psnnsvlvavia,  to  wjt  : 
BE  IT  REMEMBERED,  That  on  the  twenty-wvenlh  day  of  Jami  • 
ary,  in  the  thirty-second  year  of  the  Indcppndenre  of  the 
SEAL.    United  States  of  America,  A   a  1809,   William  1'.  Farrand 
of  the  said  District,  hath  deposited  in  this  Office,  the  title  of 
8  book,  the  right  whereof  he  claims  as  Proprietor,  in  the  words  fol- 
lowinjf,  to  wit! 

"  Farrand  and  Go's  Premium  Edition.  Hora;  Jiiridicx  Subseciv*- 
a  connected  series  of  notes,  respecting  the  KCOL'raphx,  chionoloirv' 
and  literary  historv,  of  the  principal  codU  and  oriViifald^^^^^^^ 
tl.eGrec,aH.Komai,,  Feudal  und  Canon  Law  By  Charles  Butler,  eW 
of  Lincoln's  Inn.  With  additional  notes  and  illustrations  U  an  enr?. 
trT  HoT"  *"*"  *"'  qxAdam  prodire  tenns,  si  non'datur  iil- 

t.ill"d''""*r.?'oVV''rK'"'*  "'■  ^^^  Congress  of  the  United  States,  inti- 
tuled, An  act  for  the  encouraiftment  of  learninir,  by  securinir  the 
copies  of  maps,  charts,  and  booCs,  to  the  authors  and  proprietors  of 

ST"a  '"/"'*' t''""*''"*"""^""""«-d  ="  Ai'il  alsotothcact, 
entitled.     An  act  supplementary  to  an  act,  entitled,  «  An  act  for  the 

booksTf.l?;"'  ?f '^'"•"'"»?'  »>>  "-""•inP  the  copies  of  maps,  charts,  and 
thrrpi'n  1  ?•  ^T"  "l""  l""Pr.'etors  of  such  copies  duriuK  the  times 
therein  mentioned,'  and  extending  the  benefits  thereof  to  the  arts  of 
designmg,  engraving,  and  etching  historical  and  other  prints." 

D  CALDWELL, 
■  — ■  Clerk  of  the  District  of  Pennsylvania. 

i 


L  L. 
"       63 1 i  A  ) 

MAY    18  \jA2\     to  the  public. 

.— ~.,.^ 4#(-«i-der  to  insure  correctness  the  publishers  of  this  book 

have  subjected  it  to  a  critical  examination  in  the  following 
manner—Two  proof-sheets  have  been  put  up  for  public  ex- 
amination ;  one  at  the  publishers'  counting-house,  the  other  at 
the  city  library  in  Philadelphia,  and  a  premium  of  one  dollar 
has  been  offered  for  every  error  that  might  be  discovered: 
hence  it  is  designated  a  /iremium  .edition. 


PniNTED  BY  FRY  AND  KAMMEHEn, 

Printers  of  William  P.  Farrand  and  Co.'s  premium  editions. 


/tW- 


h«lay  orjami- 
idenre  of  the 
m  1*.  Farraiul, 
ice,  the  titlp  of 
the  wordii  foK 

ex  Subsocivie: 
} ,  clirnnology, 
(lociimeiits,  of 
■s  Butler,  E.s<j. 
ins  In  an  emi- 
non  datur  iil- 

■d  States,  inti- 
i  seoirintf  the 
proprietors  of 
ilsotothcact, 
Ln  act  for  the 
js,  charts,  and 
rinjf  the  times 
to  the  arts  of 
jrints." 

Pennsylvania. 


of  this  book 
le  following 
r  public  cx- 
the  other  at 
f  one  dollar 
discovered : 


TO  THE 
RIGHT  HONOURABLE 

JOHN  LORD  ELDON, 

LORD  HIGH  CHANCELLOR  OF  GREAT-BRITAIN, 

THIS  ESSAY 

IS, 

WITH  HIS  lordship's  PERMISSION, 

RESPECTFULLY  DEDICATED. 


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-^>"  '"-  t^«'i^'siK^a«B-'*- 


■ftS^ ''""(*-':■_ 


INTRODUCTION. 


The  following  sheets  complete  a  very  imperfect 
execution  of  a  design,  which,  almost  in  the  first 
moments  of  his  engaging  in  the  study  of  the 
law,  the  writer  formed,  of  committing  to  paper, 
A  Succinct  Literary  Histouy  of  the 
Princital  Codes  extant  of  Sacred  and 
Profane  Law.  Such  a  work,  executed  with 
ability,  would  be  curious,  interesting  and  instruc- 
tive: the  writer's  projecting  it  shews  his  equal 
ignorance,  at  the  time,  of  its  nature  and  extent, 
and  of  his  inability  to  execute  it. 

It  has  not,  however,  been  wholly  out  of  his 
mind ;  so  that,  for  a  great  number  of  years,  he  lias 
been  in  the  habit  of  employing  his  leisure  hours,  in 
the  study  of  these  codes,  and  in  committing  to 
paper,  his  observations  on  them. 

Encouraged 


if 


n 


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i  ! 

1. ; 


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VIII 


I 


INTUODUCTION. 

Kticouragcd  by  tlu-  reception,  which  a  private 
impression  of  it  had  received  among  his  friends, 
he  pnhlished,  in  17i>9,  something  in  the  nature 
of  a  Literary  Hi\tory  of  the  Old  and  JVnu 
Tfstnmnits,  (on  man}  uccou'nts,  the  most  im- 
portant of  all  codes  of  law)  under  the  title, 
'*  Jlorct  liihlica,  hchifr  a  amtwcti'd  Series  of  Mis- 
'*  rellanenns  Notes  on  the  Orif^inal  Text,  Early 
"  Versions,  and  printed  Editions,  of  the  Old  and 
**  A'eiv  Testaments.'''' 

He  has  since  circulated  among  his  friends,  u  pri- 
vate impression  of  «  similar  series  of  Notes  on  the 
Coran,  the  Zend-Avesta,  the  Fedas,  the  Kittgs,  and 
the  Edda,  the  sacred  Codes  of  the  Mahometans, 
the  Parsccs,  the  Hindoos,  the  Chinese,  and  the 
Scandinavians. 

The  following  sheets,  containing  a  similar  series 
of  his  Notes  on  the  Grecian,  Roman,  Feudal  and  Ca- 
non Law,  now  solicit  the  reader's  attention. 

As  some  excuse  for  the  imperfections  of  these 
compilations,  he  begs  leave  to  mention,  that  he  has 
had  little  leisure  to  bestow  on  them,  bevond  occa- 
sional  bits  and  scraps  of  time,  which  a  very  labori- 
ous discharge  of  the  unceasing  duties  of  a  very  la- 
borious profession  has  left  at  his  command ;  and 
which  he  has  always  found  it  a  greater  relaxation  to 

emplov  in  this  manner,  than  in  anv  other. 

What 


nt. 


lyo. 


INTROnuCTION. 


ix 


What  is  here  said  on  TiiKflnKciAN  Law,  may  be  found 
to  contain  Monie  uicount  of 

I.  The  Clco^raphical  Limits  of  (Jrcrco  •  I 


II.  Of  its  Lcnislati"" 

1 .  In  its  ralniUnis 

2.  Heroic 

3.  And  Historical  Ajjo 


S26.         III.  Of  the  Laws  of  LyciirmiH 


624. 
594. 


IV. 


Draco 
and  Solon 


ib. 


190.        V.  And  of  the   Decline  of  the  Laws  of  Athena  and 

Laccdacmon  -  -  -  1» 


What  is  said  on  The  Roman  Law,  may  be  found  to 
contain  some  account 

I.  Of  the  Degree  of  Credit  due  to  the  Histories 

which   have   reached  us,  of  the  live  First 
Ages  of  Rome  -  -  20 

II.  Of   the     Geographical    Limits    of  the    Coun- 

tries in  which  the  Roman  Law  has  prevailed: 

1.  Italy  -  ...  22 

2.  The  Roman  Conquests  in  Kuropc  -  24 

3.  And  the  Roman  Conquests  out  of  Europe  25 

III.  Of  the  different  Classes  of  Roman  Subjects  ib. 
I.  Citizens,  or  those  who  had  Jus  Civitatis  25 


ft 


B 


1.  Latins, 


U> 


Before 
Chritt. 


753. 


309. 

453. 
451. 


INTRODUCTION. 

2.  Latins,  or  those  who  had  Jus  Lain 

3.  Italiuns,  or  those  who  had  Jus  Italicum 
4.  And  of  the  Provincis,  Municipia,  Prsfectu- 

rse  8t  Civitates  Foederatx 

IV.  Of   the    Government    and    Form  of    Roman 

Legislation  -  "  " 

1.  As  originally  constituted 

2.  And  as  successively  altered 
.1.  Of  the  Titles  of  their  laws 

V.  Of  the  History  of  the  Roman  Law 


V.  1.  Its  First  Period — 

From  the  Foundation  of  Rome, 
till  the  .Era  of  the  Twelve 
Tables  -  -  '^^' 

Jus  Civile  Papyrianum 


46. 


Papte 
28 

29 

After 

Clirisi 

V20 

ib. 

'J84 

1 
,•50 

31 

306 

33 

36 

408 

37 

438 

306 

V.  2.  Second  Period — 

The  Twelve  Tables 


39 


V.  3.  Third  Period — 

The  Laws  of  Rome  during  the  re- 
maining Period  of  the  Republic         42 

43 

1.  Jus  Honorarium 

2.  Actioncs  Leges    h  Solemnes  Legum  For- 

47 
muloc 

3.  Disputalioncs    Fori    k    Responsa    Pruden- 

ib. 
turn 

V.  4.  Fourth  Period — 

.      „  '.  -         50 

JuUus  Caesar 

V.  5.  Fifth 


,)28. 
533. 

534. 
566. 
368. 


Page 

2B 


tu- 


29 


ib. 


nan 


:ome, 
welve 


ib. 

38 


39 


ihe  re- 

iblic 

42 

. 

43 

m  For- 

47 

'ruden- 

ib. 

•• 

50 

V.  5. 

Fifth 

Aftfr 
Cliriiit. 


INTRODUCTION. 

V.  Fifth  Period— 
Adrian 

Edictum  Perpctuiim 
Codex  Gregorianus 
Codex  Hermogenianns 


30 

V.  6.  Sixth  Period— 

31 

306. 

Constantine  the  Great 

33 

36 

V.  7.  Seventh  Period— 

408. 

Thoodosiiis  the  Younger 

ST 

438. 

Coucx  Theodosianus 

:     506. 

Brcviarium  Aniani 

V.  8.  Eighth  Period — 

Justinia;.  -  -  - 

1.  Codex  Prims  Prxlectionis 

2.  Digestum,  or  Pandectae 

3.  Inslitutiones 

4.  Codex  Repetitx  Praleclionis 

5.  Novellx  ... 

6.  Volumen  Authenticum 

7.  Libri  r'cudorum,  and  other  Articles  forming 

the  Decima  Collatio 

8.  General  Merit  of  Justinian's  Collection 

V.  9.  Ninth  Period — 

The  Fate  of  Justinian's  Law. 

1.  In  the  Western  Empire 

2.  In  the  Eastern  Empire 
The  Basilica 
The  Extinction  of  the  Roman  law  in  the  East, 

in  conbe<|uence  of  the   taking  of  Constanti- 
nople by  Mahomet  the  Second 

V 


60 
61 
ib. 


62 
10. 


i  ". 


):.>" 


After 
Christ. 


^ij  INTRODUCTION. 

V.  10.  The  Tenth  Period- 
Revival  of  the  Roman  Law  in  the  West,  in 
consequence  of  the  Discovery  of  the  Pan- 
dccts  at  Amalphi 
Collations  and  editions  of  the  Pandects 
VI.  Principal  Schools  of  the  Civil  Law 
1.  School  of  Irnerius 
2_  Accursius 

3_  Bartolus  and  Baldus 

4.  AndCujas 

Vn.  Influence  of  the  Civil  Law  on  the  Jurispru 
dencc  of  the  principal  States  of  Europe 


Page 


62 

ib. 

63 

6T 

6S 

ib. 

ib. 

69 


What  is  said  on  the  Feudal  Law,  may  be  found  to 
contain  some  accoimt 
I.  Of  the  original  Territories  of  the  Nations  by  whom 
it  was  established. 

1.  Scythians 

2.  Celts 

3.  Sarmatians 

4.  Scandinavians 

5.  Germans 

6.  Huns 

7.  Sclavonians 


/  3 

76 
ib. 
ib. 
ib. 
76 
77 


U.  Of  the  gradual  Extension  and  Dates  of  the  prin- 
cipal Conciuests  made  by  them  -  ^'i' 

in.  And  of  the  principal  written  Documents  of  the 

Learning  of  Foreign  Feuds  -  *** 

1,  Codes 


300. 

185. 

451. 

I  560. 

'■)92. 


62 

ib. 
6S 
6T 
68 
ib. 
ib. 

69 


After 
Christ. 


INTRODUCTION. 

1 .  Codes  of  Law 

2.  Capitularies 

3.  Customary  Law 


xiu 

Page 

83 

86 

88 


What  is  said  on  The  Canon  Law,  may  be  found  to 

give  some  account 
I.  1.  Of  the  Ancient  Religion  of  Rome  -  97 

2.  Of  the  Gods  worshipped  by  the  Romans  98 

3.  And  of  the  Colleges  of  Priests  dedicated  to 

their  Service  -  -  -  99 


II.  Of  their  Toleration  of  Foreign  Worship 


101 


III.  Of  the  Christian  Hierarchy 


105 


75 

V 

76 

V 

ib. 

:oo. 

ib. 

300. 

ib. 
76 

185. 

77 

451. 

560. 
692. 

77 


IV.  Of  the  General  Materials  of  the  Canon  Law  105 


Of  the  History  of  the  Canon  Law             -  106 

1 .  The  Ancient  Period  of  the  Canon  Law        -  ib. 

1.  Canons  of  the  General  Church  -  107 
The  Apostolic  Constitutions            -  ib. 

2.  Canons  of  particular  Churches  108 
Codex  Ecclesix  Orientalis  -  ib. 
Codex  Ecclesix  Universal  -  ib. 
Nomo-Canon  of  Joannes  Scholasticus  -  109 
Synod  in  TruUo  -  -  ib. 
Nomo-Canon  of  Photius            -            -  ib. 

3.  Vetus  Canonum  Latinorum  Editio,  by  Diony- 

sius  Exiguus            -            -                -  110 


u 

M 
it 

u 

o 


i 


1. 1  i 


4.  Collection 


t 

1 .  t*' 


After 
Christ. 


760, 

845. 

906. 
1000. 

1100. 
1150. 


xir  INTRODUCTION. 

4.  Collection  of  Canons  of  the  African  Church 


1230. 
1298. 
1313. 
1340. 
1483. 
J  590. 


Church  of  Spain 


110 
111 


V.  2, 
1, 


The  Middle  Period  of  the  Canon  Law. 
Isidore  Peccator,  or  Mercator's  Collection  of 

Decretals  -  -  -  ib. 

Capitularies  of  Adrian  -  -  112 

Collection  of  Rhe^inon  Abbot  of  Prumia  ib. 

Burchardus's  Mi.gnum  Decretorum  seu  Cano- 

num  V'oliinien 
Decretum  Cunoimm,  and  Panomia  of  Ivo 
2.  Decictuiii  flratiuni 

Brcviuruiii  Bern.iali  Papiensis 

Collcxiioiis    of  Johannes   Galensis  and   Peter 

Bcnoventanus 
Libri  ijuinque  Decretalium  Gregorii  Noni 
Liber  Sextus  Dccrct.ilium 
Liber  Septimus  Decretalium 
Extravagantcs  Johunnes  xxii. 
Extravagantes  Comnuines 
Collection  of  Matthxi 
Institutioncs  Lancellotti 
3.  Of  the  Modem  Period  of  Canon  Law; 

1.  Transactions  and  Concordates  between  Sove 

reigns  and  the  See  of  Rome 

2.  Councils  of  Basil,  Pisa,  Constance,  and  Trent 

3.  Bullarium 

4.  Regula   Cancellariae   Romanx — Decrees  and 

Ordinances  of  the  various  congregations  of 
Cardinals  at  Rome;  and  Decisions  of  the  Rota    ib. 

5.  Legatine 


113 
ib. 
ib. 

115 

ib. 

ib. 
116 

ib. 

ib. 

ib. 
117 

ib. 


118 

ib. 

130 


!(■.■¥*»**«•"¥—■      --5-': 


^^,*Ra«>«^-*.#^*«^^'--i*«^1»*rs«-- 


;h 


Pa(?e 

no 

111 


5n  of 


-ano- 


Peter 


ib. 

112 

ib. 

113 
ib. 
ib. 

115 

ib. 
ib. 
116 
ib. 
ib. 
ib. 
117 
ib. 


Sove- 

118 
rrenl      ib. 

120 
;s  and 
ons  of 
e  Rota    ib. 
1.  Legatine 


INTRODUCTION, 

5.  Legatine  and  Provincial  Constitutions 


VI.  Authority  of  the  Canon  Law 


XV 

PaRC 
120 


121 


APPENDIX. 

Note  I.  On  the  Right  of  the  Crown  of  England  to  the  Ex- 
clusi\c  Dominion  and  Property  of  the  Dritish 
Seas. 

Note  II.  On  the  Geographical  Division  of  the  Alps. 

Note  III.  On  the  Prsetor's  Judicial  Power,  from  Dr.  Bever's 
History  of  the  Legal  Polity  of  the  British 
State. 

Note  IV.  On  the  Modes  of  quoting  the  Civil  and  Canon 
Laws,  from  Dr.  Hallifax's  Analysis  of  the 
Roman  Civil  Law. 


Vf"*-»*'g^^7^fr^-  J^i 


'T 


m 


i    .1' 


'      \ 


i,..' 


"^tv"  "-^r^ef  r-^=7  - 


THE  GRECIAN  LAW. 


I. 


When  the  space,  which  Greece  fills  in  history,  is 
considered,  it  is  impossible  to  view,  without  sur- 
prise, the  small  extent  of  its  GEOGRAPHICAL 

jLiuns. 

In  the  largest  sense  of  the  word,  Greece  denotes 
the  territories  between*  Illyricum  and  Mcesia,  to 
the  north;  the  Ionian  Sea,  to  the  west;  the  Cre- 
tan, to  the  south;  and  the  iEgaean,  to  the  east. 
It  is  divided  into  the  Regnum  Macedonicum, 
which,  in  the  time  of  Philip,  consisted  of  Mace- 
don,  Thessaly,  Epirus,  and  Thrace ;  and  of  the 
Grsecia  Vera,  which  was  divided  into  three  parts, 
Achaia,  Peloponnesus,  and  the  Islands.  It  is 
highly  probable  that  Greece  was  originally  peo- 
pled by  the  Pelasgi,  an  Asiatic  horde,  who,  in 
successive  emigrations,  passed  the  Caucasus,  the 
Don,  the  Neister,  and  the  Danube,  and  spread 
themselves  over  a  great  pajt  of  Greece.  At  subse- 
quent periods,  it  was  peopled  by  various  colonies 

C  from 


H 


i'l,   n 


nTjU^atWjgll  4',Wf  ^TriiiWMii  iiiftBiWJ^. 


2  THE  GRECIAN  LAW. 

from  iEgypt  and  Phoenicia.  For  a  considerable 
time,  all  its  inhabitants  lived  in  a  wild  and  barba- 
rous state.  Afterwards  its  fabulous,  heroic,  and 
historical  ages  successively  follow- 

II. 
II.  1.  Its  LEGISLATION  maybe  traced  toit!> 

■^''tnTheTythology  of  the  Greeks,  the  following 
Js  the  genealogical  history  of  justice.    Ckios  was 
the  first  of  beings,  and  gave  birth  to  Coelum  and 
Tellus,  and  to  Erebus  and  Nox:    Ccelum   and 
Tellus  were  the    parents  of  Jusjurandum    and 
Themis;  Erebus  and  Nox   were   the   parents  of 
Nemesis.    Jupiter  had  Astraea  and  Dice  by   The- 
mis —when  the  deities  itsided  on  earth,  m  the 
golden  age,  Astr«a  presided  over  the  administra- 
tion  of  justice;  and  when,  in  consequence  of  the 
vices  of  men,  the  deities  fled  to  heaven    she  was 
the  last  of  them  who  remained  on  earth;  but,  at 
length,  quitted  it,  and  was  translated  into  the  sign 
Virgo,  next  to  Libra,  her  balance.  Ceres,  the 
daughter  of  Saturn  and   Ops.    taught    niankind 
tillage,  the  worship  of  the  gods,  the  use  and  rights 
of  separate  property,  respect  to  parents    ^d  ten- 
derness to  animals:  on  this  account,  both  m  the 
Greek  and  Latin  writers,  she  is  called  the  law- 
bearing  Ceres;  and  both^n  Greece  and  Rome,  she 
was  worshipped,  and  had  temples  dedicated  to  her, 
under  that  name.  ^^^ 


I     I. mi  i*ft<fri^*i     II  I         ' 


^ll.nf;Hit>i||»"i«'J«'*iM-^*'' 


»Bj»«.^j»»#iwi^^»>.:W*»w"4;^'''^''t|'-''^^ 


^ijJUl-Wg*." 


■li 


THE  GRECIAN  LAW.  9 

The  earliest  account  of  the  fabulous  age,  onBcfor* 
which  any  reliance  can  be  placed,  commences 
about  1970  years  liefore  Christ;  when  Argos, 
from  which  the  north-eastern  territory  of  Pelo- 
ponnesus received  its  denomination,  first  began  to 
acquire  political  eminence.  It  is  said  to  have  been 
founded  by  Inachus,  in  -  •  •        1970 

His  descendants  filled  the  throne,  till  Gelanor, 
the  tenth  of  them  in  succession,  was  expelled  by 
Danaiis,  a  prince  of  /Egypt.  -  -  1586 

He  is  mentioned  by  some  writers,  as  the  first 
legislator  of  the  Greeks;  from  him,  the  people  of 
the  peninsula,  till  then  called  Pelasgiaiis,  received 
the  name  of  Danaans,  which  they  retained  in 
Homer's  time. 

41.  2.  From  that  period,  some  appearance  of  real 
history  being  discernible  in  the  accounts  we  have 
of  what  is  generally  called  the  fabulous  age  of 
Greece,  it  is  supposed  to  verge  to  a  conclusion, 
and  the  heroic  age  of  Greece,  is  supposed  to  begin. 
The  regular  history  of  Grecian  legislation  com- 
mences with  Theseus,  one  of  the  celebrated  per- 
sons from  whom  that  age  received  its  appellation. 

In  a  military  expedition  to  the  kingdom  of 
Crete,  undertaken  by  him,  to  deliver  the  Athe- 
nians from  an  ignominious  tribute,  paid  by  them 
to  the  monarch  of  that  island,  he  had  become  ac- 
quainted with  the  laws  of  Minos.  The  excel- 
Icnrc  of  those   laws  is  highly  celebrated  by  the 

writers 


The 


.||iii'ijn|iitinjnTj^a,tii  4{n,'i»i!i>t('i;ifwijifr  U'L 


^  THE  GRECIAN  LAW. 

writers  of  antiqdity :  to  us,  they  are  chiefly  kno>vn, 
as  the  foundation  on  which   Theseus,   and  after 
him  Lycurgus,  built  their  respective  systems  of 
legislation.    In  the  public  education  of  their  chil- 
dren, in  the  public  repasts  of  the  people,  at  which 
the  rich  and  the  poor  promiscuously  attended,  in 
the  division  of  the  inhabitants  into  freemen  and 
slaves,  and  in  some  other  institutions  of  Minos, 
wc  trace  the  general  system  of  legislation,  adopted 
by  the  Spartan  legislator.    It  is  observable,  that 
Minos  was  the  first  sovereign,  to  whom  the  splen- 
did prerogative  of  the  Dominion  of  the  Sea*  was 
assigned;    but  probably  it    was  confined  to  the 
Cretan  and  a  small  part  of  the  JEgxan  Seas.    On 
his  death  it  was  assigned  to  the  princes  of  Argos. 

On  the  return  of  Theseus  from  Crete,  he  abo- 
lished   private   jurisdictions,    and    subjected  the 
whole  territory  of  Athens  to  one  common  system 
of  legislation;  he  divided  the  commonwealth  into 
nobility,  husbandmen,  and  artificers;  and  esta- 
blished an  uniformity  of  religious  rites  and  sacri- 
fices.   To  the  nobility  and    husbandmen  he  ap- 
propriated the  executive  powers,  with  the  super- 
intendency  of  religion :  but  a  share  in  the  legislation 
was  given  to  all;  no  distinction  prevailed,   as  in 
every   other  Grecian  province,  and  afterwards  in 
the   Roman    world,    between  the  people   in  the 
capital,    and  the  rest    of   the  people;    all  were 


»  See  Appendix,  Note  I. 


united, 


|MfW'->^'>-'^-^'** 


ii..iji«!J'*^i'^'TftW""*'^'^'''^' 


THF,  GRECIAN  LAW.  S 

united,  under  the  general  name  of  Athenians,  in  Before 
the  enjoyment  of  every  privilege  of  Athenian 
citizens,  and  the  monarch  was  rather  their  first 
magistrate  than  their  sovereign.  In  consequence 
of  these  wise  regulations,  the  Athenians  seem  to 
have  acquired  more  civilized  manners  than  the 
rest  of  the  Greeks;  they  were  the  first  who  dropt 
the  practice  of  going  constantly  armed,  and  thus 
introduced  a  civil  dress  in  contradistinclioa  from 
the  military'. 

The  subject  leads  to  the  mention  of  nothing  of 
importance  before  the  taking  of  Troy.  -         1282 

In  his  description  of  the  shield  of  Achilles,  Ho- 
mer  gives  a  striking  account  of  a  trial  at  law,  in  his 

times. 

"  The  people  were  assembled  in  the  market- 

"  place,  when  a  dispute  arose  between  two  men, 

"  concerning    the    payment  of   a  fine   for  man- 

"  slaughter:  one  of  them  addressed  himself  to  the 

♦'  bystanders;  asserted  that  he  had  paid  the  whole; 

"  the  other  insisted,  that  he  had  received  nothing; 

"  both  were  earnest  to  bring  the  dispute  to  a  ju- 

«'  dicial  determination.    The  people  grew  noisy  in 

"  favour,  some  of  the  one,  some  of  the  other;  but 

"  the  heralds  interfering,   enforced  silence;    and 

"  the  elders  approaching,  with  sceptres  of  heralds 

"  in  their  hands,  seated  themselves  on  the  polished 

"  marble  benches  in  the  sacred    circle.    Before 

them,  the  litigants,  earnestly  stepping  forward, 

"pleaded 


t( 


i  "\ 


t  i! 


u 

t 


ll^nl 


iril 


f. 


6 


THE  GRECIAN  LAW. 


"  plcadtcl  by  turns:  while  two  talents  of  gold  Iny 
"  in  the  midst,  to  ht  awardid  to  hini,  who  should 
"  support  his  cause  by  the  cltarcst  testimony  and 
"  the  clearest  argument." 

Wc  find  From  Homtr's  writings,  that,  in  his 
time,  the  rights  of  primogci\iturc  were  consider- 
able; that,  murder  was  punished  rather  by  privat.. 
revenge  than  public  justice;  that,  conjugal  .  » 
delity,  on  the  woman's  part,  was  estre.ivd  ufi 
heinous  offence ;  that,  on  the  man's,  't  wa^  little 
regarded;  and  that,  the  breach  of  viq^ln  honour 
w  as  scarcely  thought  a  crime. 

It  is  observable  that  Homer  makes  no  menlion 
either  of  a  pure  republic,  or  of  the  absolute  rule 
of  one  man  :  he  is  supposed  to  have  Ijcen  favour- 
able  to  monarchical  government;  but  it  is  said  to 
be  discoverable  from  his  works,  that,  when  he 
wrote,  the  general  tendency  of  the  public  mind  of 
Greece  was  democratic. 

In  the  course  of  time,  democracy  obtained  a 
complete  victory  over  monarchy,  in  every  part  of 
Greece.  The  Heraclidae,  having  acquired  a  settle- 
ment  in  Doris,  invaded  and  made  themselves 
masters  of  all  Peloponnesus,  except  Arcadia.  At 
first,  they  established  a  limited  monarchy  in  the 
different  provinces  they  conquered ;  but,  having 
quarrelled  among  themselves,  and  confusion  uni- 
versally prevailinfT,  monarchy  was  almost  every 
where  abolished,    ■■•'   l-e  \vords,  Tyrant  and  King, 

became  synony   ,  ,nh. 

II.  3.  Here 


THE  GRECIAN  LAW.  f 

II.  3.  Hcrt-  the  hc..;ic  ago  of  the  history  of 
Grccci  draws  to  onclusiou,  and  \vc  perceive  ihc 
duwii  of  its  historical  tcra. 

From  this  tiuu-,  Greece  must  f>e  considered  -w 
formed  of  a  multitude  of  iiide|K>nd«  ni  statrs,  ex- 
ercising complete  sovereignty  within  their  resp( c- 
tive  territories;  l)oimd  together  by  no  fcdt  ral  uiiion, 
but  connected  by  language,  by  their  notion  of  a 
descent  from  a  common  stock,  by  a  -similitude  of 
religious  belief,  and  by  frequent  meetings  ut  public 
games. 

But  nothing  contributed  to  this  general  union 
more  than  the  council  of  the  Airphictyons :  it 
is  supposed  to  have  been  instituted  b\  Aniphictyon, 
the  son  of  Deucalion.  It  met  someti  ues  at  Ther- 
mopyls,  sometimes  at  Delphi;  the  members  of 
it  were  chosen  by  the  principal  cities  of  Greece. 
The  object  of  the  institution  was  to  decide  the 
differences,  which  happened  among  tue  Grecian 
states.  Their  determinations  were  alwavs  held  in 
great  veneration ;  and  their  influence  ib  supposed 
to   have  continued  till    the  reign  of  Antoninus 

Pius. 

During  the  whole  of  the  historical  aera  oi  Greece, 
except  when  some  singular  event  raises  a  particular 
state  into  notice,  Lacedaemon  and  AtheiiS  alone 
engage  the  attention  of  the  historian  or  civilian. 


i;. 


\tM 


a 


THE  GRECIAN  LAW. 


VI 


III. 

THE  ara  of  Grecian  legislature  begins  with  Bef«« 
the  LAWS  OF  LYCURGUS,  the  most  singular 
institution  recorded  in  history.  -  -       ^26 

He    established  two  Kings,   and   a  Senate  of 
twenty-eight  members,   appointed   for  life;    the 
Kings  were  chosen  by  the  people,  were  heredi- 
tary senators,   high  priests  of  the    nation,    and 
commanders  of  their  armies  ;  but  they  were  con- 
trolled,  in  the  exercise  of  their  power,  by  five 
Ephori,  created  annually.     With  the  senate,  all 
laws  were  to  originate;  the  general  assembly  of^ 
the  people  had  the  power  of  confirming  them ; 
but  public   debate    was     wholly    forbidden    the 
general  assembly.     Lycurgus  effected    an  equal 
division  of  land  among  all  the  citizens ;  he  abo- 
lished the  use  of  gold  and  silver ;  and  ordained, 
that  all  children  should  be  educated  in  public : 
every  citizen  was  to  be  a  soldier ;  all  sedentary 
trades,  and  even  agriculture,  were  forbidden  them  ;- 
the  ground  was  cultivated  by -the  Helotze,  akind  of 
slaves,  whom  the  Lacedaemonians  treated  with  the 
greatest  cruelty. 

Thus,  Lycurgus  efiected  a  total  revolution  of    ^ 
law,  property,  and  morals,  throughout  the  whole 
of  the   Spartan  territory  :    no  legislator  ever  at- 
tempted  so  bold  a  plan.     It  has  been  observed, 

that, 


tvt^^,..rHlft-ii»^l}^i  fjf  »*j: 


.^;,^.5g5^^5J^«^SSW^^ 


^ii«*B!»e*'-; 


with  BcfbM 
,      Christ,. 

igular 

-  926 
ite  of 
;  the 
eredi- 
,  and 
e  con- 
y  five 
te,  all 
bly  of^ 
them ; 
1    the 

equal 
e  abo- 
lained, 
mblic : 
lentary 
them  y 
kind  of 
iththe 

tion  of    ^ 
;  whole 
ver  at- 
served, 
that, 


THE  GRECIAN  LAW.  9 

that,  if  he  had  merely  been  a  legislator  in  specu-  Before 
lation,  his  scheme  would  have  been  thought  more 
visionary  than  Rato's;  it  may  be  added,  that,  if 
the  existence  and  continuance  of  his  institutions 
were  not  proved,  bejond  argument,  by  the  highest 
degree  of  historical  evidence,  the  relations  of  them 
would  be  pronounced  a  fiction,  on  account  of  what 
would  be  termed  their  evident  impracticability. 
Yet,  the  first  establishment  of  them  was  attended 
with  little  resistance,  and  with  no  political  convul- 
sion; they  remained  in  vigour  longer  than  any 
political  institution  of  antiquity  known  to  us,  and 
were  respectable  even  in  their  decay. 


IV 


J .  DRACO  was  the  first  legislator  of  ATHENS : 
of  his  laws  we  know  little  more  than  that  their  ex- 
treme severity  was  proverbial. 


He  made  all  crimes  capital,  on  the  ground, 
that  a  breach  of  any  positive  law  was  a  treason  to 

the  state. 

Solon  framed  for  his  countrj^men,  a  new  and 
milder  system  of  law.  .  .  -  - 

Mr.  Tytler's  Elements  of  Ancient  History,  1st 

vol.  49 52,  gives  us  the  following  concise  and 

clear  view  of  Solon's  Legislation. 

"  Solon,  an  illustrious  Athenian,  of  the  race 
'«  of  Codrus,  attained  the  dignity  of  Archon  594 

D  'B.C.; 


624 


594 


r 


tf.\ 


■  1 


'  \i 


■    .1 


m 


JO  TlIEfJKKCIANLAW. 

"  li.  C;  and  was  intrusted  with  the  care  of  fram- 
"  in^,  for  his  country,  a  new  form  of  government, 
"  and  a  new  system   of  laws.  He   possessed  ex- 
"  tensive  knowledge,  but  Avanted  that  intrepidity 
"  of  mind,   which  is  necessary   to  the  character 
"  of  a  great  statesman.  His  disposition  was  mild, 
"  and   temporising,    and,   without    attempting  to 
"  reform  the  manners  of  his  countrymen,  he  ac- 
*'  commodated  his  s}'stem  to  their  prevailingTiabits 
"  and  passions. 

"  The   people   claimed  the    sovereign   power, 
"  and  they  received  it:  the  rich  demanded  offices 
"  and  dignities:  the  system  of  Solon  accommo- 
"  dated  them   to  the  utmost  of  their  wishes.  He 
"  divided  the  citizens  into  four  classes,  according 
"  to  the  measure  of  their  wealth.    To  the  three 
"  first,  (the  richer  citizens,)  belonged  the  offices 
"  of  the  commonwealth.  The  fourth,  (the  poorer 
"  class,)  more  numerous  than  all  the  other  three, 
"  had  an  e(iual   right  of  suffrage  with  them,  in 
"  the  public  assembly,  where  all  laws  were  fram- 
"  ed,  and  measures  of  state  were  decreed.  Con- 
"  sequently  the  Aveight  of  the  latter  decided  every 
"  question. 

"  To  regulate,  in  some  degree,  the  proceed- 
"  ings  of  tlieir  assemblies,  and  balance  the  weight 
"  of  the  popular  interest,  Solon  instituted  a  senate 
«'  of  400  members,  afterwards  enlarged  to  500 
''  and   600.)   with   whom   it   was   necessary  that 

"  everv 


j.-_,«<;;(^».^..— i  -■■i^a»i.r='='^«'i""*PW,!Sf'wC'"S* 


THE  GRECIAN  LAW 


11 


fram- 

«( 

iment, 

ii 

;d  ex- 

«( 

epidity 

aracter 

C( 

s  mild, 

(( 

ing  to 

(( 

he  ac- 

<( 

'"habits 

<( 

(( 

power, 

(( 

offices 

il 

-ommo- 

n 

les.  He 

cording 

n 

le  three 

(( 

;  offices 

iC 

i  poorer 

(( 

:r  three, 

(( 

tiem,  in 

(( 

re  fram- 

(( 

d.  Con- 

(( 

;:d  every 

l( 

(( 

proceed- 

a 

e  weight 

t< 

a  senate 

n 

to   500 

sary  that 

(I 

"  cverv 

every  measure  should  originate,  before  it  became 
the  subject  of  discussion  in  the  asscn\biy  of  the 
people. 

"  To  the  court  of  Areopagus  he  committed 
the  guardianship  of  the  laws,  and  the  power  of 
enforcing  them,  with  the  supreme  administra- 
tion of  justice.  To  this  tribunal  belonged,  like- 
wise, the  custody  of  the  treasures  of  the  state, 
the  care  of  religion,  and  a  tutoral  power  over  all 
youth  of  the  republic.  The  number  of  its  judges 
was  various,  at  diflerent  periods,  and  the  most 
immaculate  purity  of  character  was  essential  in 
that  high  office. 

"  The  authority  of  the  Senate  and  Areopagus 
imposed  some  check  on  the  popular  assemblies; 
but,  as  these  possessed  the  ultimate  right  of  de- 
cision, it  was  ever  in  the  power  of  ambitious 
demagogues  to  sway  them  to  the  worst  of 
purposes.  Continual  factions  divided  the  peo- 
ple, and  corruption  pervaded  every  department 
of  the  state.  Their  public  measures,  the  result 
of  the  interested  schemes  of  individuals,  were 
often  equally  absurd  as  they  were  profligate. 
Athens  often  saw  her  best  patriots,  the  wisest 
and  most  virtuous  of  her  citizens,  shamefully 
sacrificed  to  the  most  depraved  and  most  aban- 
doned. 

"  The  particular  laws  of  the  Athenian  state 
were   more   deserving   of   encomium   than    its 

"  form 


'   :    '.'>■ 


'^     ,;'? 


,ii^' 


jtmmmmMsi^^issfi^^ 


If  'i'" 


12 


THE  GRECIAN  LAW. 


m 


"  form  of  government.  The  laws  relating  to 
♦'  debtors  were  mild  and  equitable,  as  were  those 
"  which  regulated  the  treatment  of  slaves.  But 
"  the  vassalage  of  women,  or  their  absolute  sub- 
"  jection  to  the  control  of  their  nearest  relation, 
"  approached  near  to  a  state  of  servitude.  The 
"  proposer  of  a  law,  found  on  experience  impolitic, 
"  was  liable  to  punishment;  an  enactment  appa- 
"  rently  rigorous,  but  probably  necessary  in  a 
"  popular  government. 

**  One  most  iniquitous  and  absurd  peculiarity 
"  of  the  Athenian,  and  some  other  governments 
"  of  Greece,  was  the  practice  of  the  ostracism, 
"  or  a  ballot  of  all  the  citizens,  in  which  each 
"  wrote  down  the  name  of  the  person  in  his  opi- 
"  nion  most  obnoxious  to  censure;  and  he  was 
"  thus  marked  out  by  the  greatest  number  of  voices, 
"  and,   though  unimpeached  of  any  crime,   was 
"  banished  for  ten  years  from  his  country.  This 
"  barbarous  and  disgraceful  institution,  ever  capa- 
"  ble  of  the  grossest  abuse,  and  generally  subser- 
"  vient  to  the  worst  of  purposes,  has  stained  the 
"  character    of   Athens    with   many  flagrant '  in- 
"  stances  of  public  ingratitude."   A  full  account 
of  the  laws  of  Athens  may  be  found  in  Archbishop 
Potter's  Archajologia  Graeca,   B.    1.    The   frag- 
ments of  them  were  published  by  Petitus,  with 
an  excellent  commentary.   A  splendid  edition  of 
iho    work,    with    his   own    notes    and  those   of 

Palmerius. 


-  ^  -  ^..^i,,^jyypg*^iy^>!»-y;f  giyg*y^ft-; 


r-^^mm^ui^i^i.sf.'mimt.^mmmm^^^^ 


•«r'- 


"«% 


THE  GRECIAN  LAW.  13 

Palmerius,  Salvinius,  and  Duker,  was  published 
by  Wesseling,  in  1742. 

IV.  2.  This  may  be  considered  a  succinct  view 
of  the  constitution  of  Athens,  as  it  was  established 
by  Solon.  The  following  is  a  short  account  of 
their  Forensic  proceedings  in  the  civil  administration 

of  justice. 

All  cases,  respecting  the  rights  of  things,  be- 
longed to  the  jurisdiction  of  the  Archon:  he  had 
six  inferior  magistrates,   of  the  same  name    for 
his  assessors.  The  person  who  sought  redress  in 
a  court  of  justice,  denounced  the  name  of  his  ad- 
versary,  and  the  cause  of  his  complaint  to  the 
sitting  magistrate;  and,   if  the  sitting  magistrate 
thought  the  cause  of  action  maintainable,  he  per- 
mitted the  complainant  to  summon  the  defendant: 
if  the  defendant  disobeyed  the  summons,  he  was 
declared  infamous;    if  he  obeyed  it,  the  parties 
were  confronted,  and  were  at  liberty  to  interrogate 
one  another.   If  the  magistrate  thought  there  was 
a  probable  cause  of  action,  he  admitted  the  cause 
into  court;  here  the  pleadings  began,   and  were 
continued  till  the  parties  came  to  some  fact,  or 
some  point  of  law,  asserted  on  one  side,  and  denied 
by  the  other;  this  brought  them  to  issue:  then, 
all  the  pleadings  and  evidence  in  the  causes  were 
shut  up  in  a  vessel,  which  was  carried  into  court. 
The  Archon  then  assigned  the  judges  to  try  tht 
cause,  and  they  decided  not  only  upon  the  fact, 

but  upon  the  law  of  the  case. 

^  One 


..^■ 


14 


thi:(;ri:cian  law. 


!fl 


One  mode  of  process  in  use  at  Athens,  bears  a 
resemblance  to  the  modern  practice  of  trying  the 
title  to  the  freehold  by   ejectment.    That,  in  its 
original  state,   was  an  action  ijrought  by  a  lessee 
for  years,  to  repair  the  injury  done  him  by  dispos- 
sessing him  of  his  term.  To  make  it  serve  as  a 
legal  process  for  recovering  the  freehold,  the  law 
now  supposes,  that  the  party  dispossessed  has  en- 
t'-red  on  the  land ;  that  he  has  executed  a  lease  of 
it;  and  that  his  lessee  has  been  dispossessed:  for 
this  injury,  the  lessee  brings  his  action  of  eject- 
ment  to  recover  the  term  granted  by  the  lease : 
now,  to  maintain  his  title  to  the  lease,  he  must 
shew  a  good  title  in  his  lessor ;  and  thus  incivlen- 
tally  and  collaterally  the  title  to  the  freehold  is 
brought  before  the  court.    In  the  jurisprudence  of 
Athens,  the  guardian  and  ward  were  so  far  iden- 
tified, that  the  latter  could  not  maintain  an  action 
against  the  former;  so  that,  for  any  injury  done 
to  his  property,    the  ward,    during   the  term   of 
jjupilage,    was    without   remedy.    For  his  relief, 
the  law  authorised  the  Archon  to  suppose  a  lease 
had  been  executed  by  the  ward  to  a  stranger;  then, 
the  stranger,  a  kind  of  next  friend,  was  to  bring 
his  action  against  the  guardian,  for  the  injury  done 
to  his  property  during  tlie  term;  and,  if  he  re- 
covered, he  became  trustee  of  what  he  recovered 
for  the  award.    Thus,    in  each  case,  a  fictitious 
lease  was  used  as  a  legal  process  for  bringing  the 
real  merits  of  the  case  to  trial. 

Sir 


.i4tti,w,iif!aiji.ai:\r'!g'MSJa»^ 


'-'!m-as^^^^l^v0f»i^%i^'''^l^^t'iJ^'^-'''is^-'-i^-  ■ 


Sir 


THK  GRECIAN  LAW. 


15 


Sir  Matthew  Hale,  in  his  History  of  the  Com-  ^^ 
mon  Law,  and  Sir  William  Jones,  in  the  Notes 
to  his  translation  of  Isaeus,  make  particular  men- 
tion of  the  law  of  succession  at  Athens.  It  is 
observable,  that,  though  a  general  eciuality  of  pro- 
perty was  one  of  the  principal  objects  of  Lycur- 
gus's  legislation,  he  assigned  to  the  eldest  son 
almost  the  whole  of  his  parent's  property,  with  an 
obligation  of  providing  for  his  sisters  and  younger 
brothers. 

•  V. 

WITH  the  death  of  Solon,  the  sera  of  Gre- 
cian legislation  finishes,  and  the  iera  of  her  mili- 
tary glory  begins.  But,  early  in  this  brilliant  pe- 
riod of  her  history,  THE  DECLINE  OF  THE  490 
LAWS  OF  ATHENS  AND  LACED/EMON 
is  discernible. 

With  respect  to  Mhem,  it  has  been  mentioned, 
that,  by  the  laws  of  Solon,  the  lowest  class  of 
citizens  had  been  excluded  from  offices  of  state. 
These,  on  the  motion  of  Themistocles,  were 
opened  to  them:  this  lessened  the  general  dignity 
of  the  magistrature,  and  introduced  venality  and 
disorder  into  every  department  of  the  administra- 
tion. Here,  however,  the  mischief  did  not  rest. 
As  the  poor  were  under  a  necessity  of  giving 
almost  the  whole  of  their  time  to  the  labour, 
on  which  their  daily  sustenance  depended,  they 

had 


i; 


r  u 

{1    !l  ; 


I    ::;( 


r   il 


.   i 

16 


TllECiRECIAN  LAW. 


had  scarcely  any  opportunity  of  attending  theBdorj- 
public  assemblies  of  the  people  ;  but,  on  the  mo- 
tion of  Pericles,  every  Athenian,  who  assisted  at 
a  public  assembly,  received  three  oboli  for  his 
attendance  :  this  increased  the  tumult  and  corrup- 
tion  of  the  public  assemblies :  and  this  was  not  the 
only  instance  in  which  Pericles  sacrificed  much 
of  Solon's  law  to  the  caprice  of  the  people. 

In  respect  to  Lacedfemon,  the  victories  of  Ly- 
sander  and  AgesilaUs  carried  the  Spartans  into 
foreign  countries,  and  brought  the  wealth  of  fo- 
reign  countries  into  Sparta.  The  consequence  was, 
that  what  the  Lacedaimonians  gained  by  their 
military  successes,  they  lost  in  consequence  of  the 
decline,  which  those  very  successes  occasioned, 
of  the  principles  and  habits  of  heroic  virtue, 
which  the  legislation  of  Lycurgus  had  inculcated 
among  them,  and  which  had  made  them  the  won- 
der of  Greece. 

Insensibly  the  glor}'  of  Athens  and  Laced?emon 
expired.  At  the  battles  of  Leuctra  and  Mantinaea, 
they  received  a  check,  from  which  they  never  re- 
covered. 

At  the  battle  of  Cheronaea,  king  Philip  of  Ma-  387 
cedon  obtained  a  complete  triumph  over  the  Athe- 
nians ;  and,  by  degrees,  the  laws  of  Solon  fell  into 
disuse. 

By  the  direction  of  Antipater,  to  wh.om  the 
general  superintendence  of  the  affairs  of  Greece 

was 


'■•'J^^^''J5S!I'''.?* 


m^m^Si?^" 


■SSsWSiBir' 


IK    theBeforr 
"^  Clirinl. 

le  mo- 
tted  at 
or  his 
;orrup- 
not  the 
much 

of  Ly. 

IS  into 
of  fo- 

f  their 
of  the 
sioned, 
virtue, 
ulcated 
le  won- 

d?emon 
ntin%a, 
ver  re- 

of  Ma-  387 
£  Athe- 
Pell  into 

om  the 

Greece 

was 


THE  GRFXIAN  LAW. 

was  committed  by  Alexander  the  Great,  when  he  Befi.ie 
set  out  on  his  expedition  to  Persia,  they  were  re- 
stored, with   some   modifications,  by    Demetrius 
Phalereus,  and  continued  in  that  state,  while  Greece 
was  subject  to  Alexander's  successors.         -  ^80 

When  the  Romans  conquered  Greece,  they 
allowed  to  the  different  states  the  use  of  their  laws ; 
insensibly  the  Romans  acquired  a  taste  for  the  arts 
and  literature  of  Greece,  and  this  particularly  re- 
commended the  Athenians  to  them. 

On  a  complaint  by  the  Athenians,  that  too  many  After^ 
changes  had  been  made  in  the  laws  of  Solon,  the 
Emperor  Adrian  accepted  the  office  of  Archon, 
and  restored  the  ancient  law.  -  -  130 

The  Emperor  Constantine  was  not  so  favourable 
to  the  Athenians ;— in  the  Emperor  Julian,  they 
had  a  zealous  friend.  -  -  360 

By  an  edict  of  the  Emperor  Justinian,  the  schools 
of  Athens  were  shut  up  :  this  is  generally  assigned 
as  the  »ra  of  the  extinction  of  Paganism,  and  of 
the  absolute  decline  of  the  philosophy  and  jurispru- 
dence of  Athens.        -  -  -  -         529 

With  the  history  of  the  decline  of  the  Laws  of 
Lycurgus,  we  are  less  acquainted.  Though  in  a 
state  of  decay,  their  appearance  was  venerable 
in  the  time  of  Polybius :  perhaps  they  suffered 
less  than  the  Laws  of  Athens,  during  tlie  Mace- 
donian  influence  in  Greece ;  and  probably  they 
engaged  less  of  the  attention  of  the  Romans;  but 

E  we 


H 


n 


f\ 


V 

! 

'  .       1 
1 

^  1  •■ 

|y 

\ 

18 


THKCiRECIAN  LAW. 


wc  have  no  reason  to  suppose  they  long  ^"rvivcd  AU^r^ 

the  Athenian  Law. 

On  the  division  of  the  empire  between  the  sons 
of  Theodosius,  Greece  was  allotted  to  the  Kmperor 
of  the  Kast:  it  sufiered  much  from  the  incursions   395 
of  the  Goths  under  Alaric. 

In  the    twelfth    century,  the  emperor  MiUuicHlOO 
divided  Peloponnesus  between    his    seven    sons: 
before  this   time,  from    the  resemblance    of   its 
shape  to  that  of  a  mulberry  tree,  called  Morca 
in  Greek,   and  Morus  in  Latin,  it  had  received 
the  appellation  of  The  Morea.    In  the  next  ccn- 1200 
tury,    when    Constantinople    was    taken   by    the 
Western  Princes,  the  miu-itime  cities  of  Pelopon- 
nesus, wiUi  most  of  the  islands,  submitted  to  the 
Venetians.    In  the  fifteenth  century,    the    whole  1460 
Morea  fell  an  easy  prey  to  Mahomet  II.,  after  his 
conquest  of  Constantinople.    Towards  the  close 
of  the   sevoiteenth    century,  the  Ottomans  were 
expelled  from  it  by  the  Venetians,  and  it   was 
formally  ceded  to  them  by  the  Porte,  at  the  treaty 
of  Carlowitz  :  but,  about  fifteen  years  afterwards,  1699 
it  was  regained  by  the  Porte,  and  now  forms  a 
part  of  their  empire,  under  the  appellation  of  the 
Bcglergbeg  of  Greece.    It  is  governed  by  a  mi- 
litary officer,  called   a  Sangiac,   who  resides   at 
Modon. 

Such  have  been  the  rise,  progress,  and  decline  of 

the  Laws  of  Greece. 

The 


THE  GRECIAN  LAW 


19 


irvivcd  AUcr 
Christ 


\c  sons 
mp'Tor 
ursions 


395 


MiuuiclllOO' 
1   sons: 

of   its 

Morca 
cccivcd 
xt  ccn- 120n 

by  the 
*elopon- 
J  to  the 
;  whole  1460 
after  his 
he  close 
ins  were 
.  it  was 
lie  treaty 
envards,  1699 

fornr\s  a 
n  of  the 
3y  a  mi- 
sides   at 

Iccline  of 


The 


The  great  influence  of  the  Roman  Law  on  the 
jurisprudence  of  modem  nations  is  striking!)  dis- 
cernible, in  every  part  of  their  laws:— if  it  be  true, 
that  Rome  derived  her  law  from  the  Athenian  code, 
the  "  GrsEcia  capta  ferum  victorem  cepit,"  is  as 
applicable  to  the  legislation  as  it  is  to  the  arts  of 
Greece.* 

«  This  arliclf  is  principally  oxtraclccl  from  Ulifio  F.mmiuii'ii 
VetUH  Gracia  I//ustrata,  3  vol.  Hvo,  the  best  ncom-uphical  ac- 
count of  (ircccc,  which  has  yit  appeared;  from  Jrchhinhofi 
Polter'H  jlntu/uitirH  ofCirnn;  a  w.jrk  of  ^reat  IcaniinK;  from 
Jirunin^'g  Com/icndiutn  ytnth/uitalum  (ir<tcarum;  I-'rumofurU 
adManumy  1  vol.  8ro,  1735,  an  useful  abrulKmcm  of  the 
Archbishop's  work;  from  various  treatises  of  Meursius,  par- 
ticularly  his  Thvmu  jitticai  from  Mr.  Miiford'i,  and  Doctor 
(allies',  HimrivH  of  Greece;  and  from  Sir  milium  Jones', 
Translation  of  Is^us,  a  lastinR  monument  of  his  tnduslry,  and 
his  wonderful  <iuicknes8  in  the  acquisition  of  accunite  and 
extensive  knowledge,  even  of  the  absirusest  kind. 


1     t 


;  I 
tl  hi 


i,.:.0^^ 


i  1' 


THE  ROMAN  LAW. 


I. 


'■^ 


!i 


1    •'.: 


J'hoSK,    who     wish    to    trace    the    ROMAN 
LAW    to    its  on}i;in,   almost    immediately    find 
themselves  obliged  to  form  an  opinion  on  a  point 
which  has  been  the  subject  of  much  discussion, 
and  a  decision  upon  which  is  not  very  easy,  the 
degree  of  credit  due  to  the  histories,   which  hiroe 
reached  us,  of  the  Jive  first  ages  of  Rome.    The 
credibility  of  them   was  ingeniously  attacked  by 
M.  de  Pouilly,  and  as  ingeniously  defended  by 
L'Abbe  de  Salier,  in  their  dissertations  on  Uiis 
subject,  in  the  Memoires  de  TAcademie.    In  his 
discourses,    Sur  I'inccrtitude   des   cinq  premiers 
siecles  de   I'histoire   Romaine,    M.  de    Beaufort 
seems  to  have  determined   the  question.     By  a, 
variety  of  arguments,  drawn  from  the  scantiness 
of  the  materials,  from  which  these  histories  ap- 
pear to  have  been  framed,    from    the    romimtic 
nature  of  several  of  the  exploits  recorded  in  them, 
the  improbability  of  manv,  and  evident  falsehood 

of 


■:p(«r^?^" 


rrtT 


•7sr7tT?H7Sri!r7?>rSr?SS3^?S^^ 


?5S(a3?£iS5'.'«J*^ 


THl,  IIOMAN  LAW. 


31 


ol"  some  of  their  relations,  utul  from  the  contra- 
dictions and  absurdities,  with  which  they  fre- 
quently abound,  he  shews  that,  at  least,  where 
they  descend  into  particulars,  they  should  be  read 
with  a  considerable  degree  of  distaist.  What 
they  mention  of  the  populousness  of  Rome,  which, 
before  the  end  of  her  second  century,  contained, 
by  their  accoiuits,  500,000  persons,  appears  in- 
credible: but  a  smaller  number  would  not  have 
suflicedto  construct  the  pjiblic  works,  with  which, 
even  then,  Rome  abounded.  This  circumstance 
has  struck  some  modern  Avriters  so  forcibly,  that, 
to  account  for  it,  they  have  supposed,  that  Rome 
was  raised  on  the  ruins  of  a  city,  which,  though 
now  wholly  forgotten,  was  once  populous  and 
magnificent,  and  the  seat  of  a  powerful  empire. 
In  pursuing  this  research,  some  have  found  such 
an  empire  among  the  Hctruscans.  Witli  tlie 
particulars  of  the  history  of  that  people,  \ve  are 
little  acquainted;  but  we  have  certain  informa- 
tion,* that,    long   before    the    jera  of   the   foun 

•  Sec  the  ApjH'iuUx  to  tlic  ancient  Universal  History,  vol. 
18.  p.  187.,  and  Maffei's  Veronti  llhistrata,  1).  1.  The  ex- 
pression of  Livy,  h.  1.  c.  2.,  is  very  strong?,  "  Tanta  opibu  . 
"  Etruria,  ut  jam  non  tefras  solum,  sed  mare  ctiam  per  totam 
"  Italiae  longitiulincm,  ah  Alpihus  ad  I'retum  Siculuni,  fanifi 
"  nominis  svii  iniplcssct."  On  the  other  hand,  the  silence  ol 
Herodotus  nuiy  he  thought  a  strong  argument  against  the 
existence  of  such  a  city  in  his  time. 

dation 


(    ; 


.  ,>*■" 


teV»* 


I 


m 


li' 


22 


THE  ROMAN  LAW. 


dation  of  Rome,  they  were  a  flourishing  state,  ex- 
cellent in  arts  and  arms. 

II. 

THE  first  object  in  the  study  of  the  Roman 
Law,  is  to  obtain  an  accurate  view  of  the  LIMITS 
OF  THE  COUNTRIES,  in  which  it  prevailed,  be- 
fore the  dismemberment  of  the  empire.  They  may 
be  dividedinto  Italy,  theconquests  of  tl>e  Romans  in 
the  other  parts  of  Europe,  and  their  conquests  out 
of  Europe. 

II.  1.  Italy  lies  7.  19.  East  long.,  and  38.  47. 
North  lat.:  the  Alps  divide  its  northern  part  from 
France,  Switzerland  and  Germany;  on  every 
other  side,  it  is  washed  by  the  Mediterranean.  Its 
natural  separation  is  into  its  northern,  central,  and 
southern  divisions.  Its  northern  division  con- 
tains the  modern  Lombardy  and  the  territories  of 
Venice  and  Genoa,  and  reaches  on  every  side  to 
the  Alps,  from  a  line  which  may  be  supposed  to 
be  drawn  from  the  Rubicon  on  the  eastern,  to  the 
Macra  on  the  western  side  of  Italy.* 

Its  central  division  extends  from  the  Rubicon  to 
the  Trento,  near  the  Fortori,  on  the  eastern  sea, 
and  from  the  Macra  to  the  Silaro,  on  the  western 
and  comprises  Etruria,  Umbria,  Picenum,  Sabinia, 
Latium,  Lavinium,  and  Campania,  or  Tuscan  , 


»  Sec  Appendix,  Note  II. 


the 


-r— f'T*"-" 


THE  ROMAN  LAW. 


23 


te,  ex- 


Roman 
[MITS 

led,  be- 
ey  may 
nans  in 
;sts  out    / 

38.  47. 
irt  from 
1  every 
san.  Its 
ral,  and 
m  con- 
tories  of 
side  to 
posed  to 
I,  to  the 

bicon  to 
ern  sea, 
ivestern 
Sabinia, 
\iscan  , 


the  Ecclesiastical  State,  and  the  territory  of  Na- 
ples :   its  southern  part  contains  the  remainder  of 
Italy,  the  Marsi,  the  Samnites,  the  Apulians,  and 
the  Lucanians.     Before  the  Roman  conquests  of 
it,  the  northern  division  of  Italy  had  been  occu- 
pied  by   a  colony  of  Gauls:   on  that  account,  it 
was  known  to  the  Romans,  by  the  name  of  Gallia 
Cisalpina ;  and,  from  its  being  intersected  by  the 
Po,   the  northern  division,    made   by  that  river, 
was    called    by    them    the     Transpadanan,    the 
southern  was  called  the   Cispadanan   Gaul.   The 
southern  part  of  Italy  was    peopled  by   colonies 
from   Greece;    on    that    account    it    was    called 
Magna  Graicia,   by  the  Romans: — the  part   be- 
tween Gallia  Cisalpina  and  Magna   Graecia,  was 
called  Italia  Propria,   or  Italy  Proper.  The  part 
of  the  Mediterranean,  on  the  eastern  side  of  the 
peninsula,  was  called  the  Higher,  and  afterwards 
the  Hadriatic  Sea ;  the  part  on  its  western  side,  was 
called  the  Lower  or  Tyrrhenean  Sea. 

With  respect  to  its  Ancient  State,  it  is  probable, 
that  the  greatest  part  of  Italy  was  in  possession 
of  the  Hetruscans,  when,  about  the  year  964 
before  Christ,  Evander  arrived  in  Latium,  and 
built  a  small  town  calkd  Palantium.  It  is  sup- 
posed, that  Latinus  reigned  there,  about  the 
time  of  the  Trojan  war;  that,  in  his  reign,  ^^neas 
landed  in  Italy,  married  Lavinia  liis  daughter,  and 
built  Lavinium;  that  Ascanius,  the  son  of  Apneas, 
built  Alba;  that  Romulus  descended  from   him, 

and 


)         1 


E*^^-ifcC-i:';i— ^■'_:-.^s; :- 


,J0^ 


24 


THE  ROMAN  LAW 


and  laid  the  fouiKlation  of  Rome,  753  years  befort 

Christ. 

The  monarchical  government  of  Rome  subsisted 
about  250  years ;  during  the  whole  of  this  time, 
Rome  ^vas  engaged  in  war  with  her  neighbours; 
and  perhaps  the  utmost  extent  of  her  conquests  did 
not  exceed  a  circumference  of  fifteen  miles.    In 
the  next  250  years,  the  Romans  conquered  the 
remaining  part  of   Italy,   from   the    Alps   to   its 
southern  extremity:  then  the  conflict  between  her 
and  Carthage  commenced.  From  the  destruction 
of  Carthage,  the  a;ra  of  her  foreign  conquests  may 
be  dated;'  in  the  reign  of  Augustus,  they  reached 
the  Atlantic,  on  the  west;  the  Euphrates,  on  the 
cast;  the  Rhine  and  the   Danube,  on  the  north; 
and  Mount  Atlas  and  the  Catai-acts  of  the   Nile, 
on  the  south:  under  Domitian,  they  were  carried 
to  the  Frith  of  Forth  and  the  Clyde;  and,  under 
Trajan,  over  the  Danube  into  Dacia;  and  over  the 
Euphrates,  into  Mesopotamia  and  Armenia. 

II.  2.  The  European  part  of  this  spacious  conquest 
contained  Hispania,  or  the  kingdoms  of  Spain  and 
Portugal:  Gaul,  which  comprised  the  whole 
country  between  the  Pyrenees,  the  Ocean,  the 
Rhine,  and  the  Alps,  or  the  present  territory  of 
France,  with  the  addition  of  Switzerland:  Bri- 
tannia, which  comprised  all  England,  Wales, 
and  the  lowland  parts  of  Scotland,  up  to  the  Frith 
of  Forth  and  the  Clyde:  the  Rhoetian  and  V in- 
delician   provinces,  which   nearly   comprised  the 

Orisons, 


•si^^ 


.sm» 


,^,f^^j^it^i»i^litlf,)imf-t^yffi^^-<^}«'.  ;•"•*  1 


J' 


THE  ROMAN  LAW. 


25 


Grisons,  the  Tyrolese,  and  a  part  of  Bavaria:  the 
Norican,  Pannonian  and  Dalmatian  provinces, 
which,  under  the  general  name  of  lUyricum, 
filled  the  country  between  the  Danube  and  the 
Hadriatic,  up  to  ancient  Greece:  Moesia,  which 
comprised  Scrvia  and  Bulgaria:  and  Dacia,  which 
comprised  Temeswar  and  Transylvania,  the  only 
part  of  the  Roman  territory  beyond  the  Danube; 
and  Thrace,  Macedonia,  and  Greece,  the  Roume- 
lia  of  the  Turks. 

II.  3.  The  Roman  conquests  out  of  Europe 
reached  over  Minor  Asia,  Syria,  Phcnicia,  and 
Palestine;  over  iEgypt,  as  far  as  Syene;  and  over 
the  whole  northern  frontier  of  Africa.  It  should 
be  added,  that  the  countries  on  the  northern  shores 
of  the  Euxine,  from  the  Danube  on  the  west  co 
Trebizond  on  the  east,  were  tributary  to  the  Ro- 
mans,  received  their  kings  from  Rome,  and  had 
Roman  garrisons.* 


M, 


III. 


THESE  were  the  limits  of  the  Roman  empire; 
her  subjects  may  be  classed  under  the  following 
divisions. 

•  This  article  is  chiefly  extracted  from  the  second  chapter 
of  the  first  volume  of  Mr.  Gibbon's  history;  the  geography 
of   that    work    is   unquestionably  entitlort  to  the    highesj. 

'*"'"'•  T?.  III.  l.Tht" 


a-y 


.y^ 


>^i 


ii 


i  'i 


fi.a 


i 


2^i  .  THK  ROMAN  LAW 

III.  1.  The  highest  class  of  subjects  was  that 
of  Roman   citizens,   or  those   who  had  the  Jus 

Cwitatis. 

At  a  distance  of  about  fourteen  miles  from  the 
sea,  the  city  of  Rome  stands  on  a  cluster  of  small 
hills,  contiguous  to  each  other,  rising  out  of  an 
extensive  plain,  washed  by  the  Tiber.  At  first,  it 
was   confined   to   the   Palatine  Hill:  the   Capitol 
was  added  to  it  by  Titus  Tatius ;  the  Quirinal,  by 
Numa;    the    Celian,    by   Tullus    HostUius;    the 
Aventine,   by  Ancus   Martins;  and  the  Viminal 
and  Esquinal  by  Scrvius  Tullius.  The  city  was 
surrounded  by  a  wall;  a  slip  of  ground,  on  each 
side  of  it,  was  called  the  Pomaerium;  the  walls 
and  Pomjerium  were  sacred:  whoever  extended 
the   limits  of  the  empire,  had  a  right  to  extend 
the  walls  of  the  city :  its  last  and  greatest  exten- 
sion, was  in  the  time  of  the  Emperor  Aurelian: 
he  inclosed  the  Mons  Pincius  and  Campus  Mar- 
tins   within   its  walls.    In  850,  Pope  Leo  added 
to  it  the  Mons  Vaticanus.  At  first,  it  was  divided 
into  four  districts  or  regions;  Augustus  divided 
them  into  fourteen;  modern  Rome  is  divided  into 
the   same  number;  but  the  sites  of  the  ancient 
and   modern    districts   or    regions,    considerably 

differ. 

At  first,  all  who  fixed  their  residence  in  any 
part  of  the  Roman  territory,  had  the  Jus  Civitatis, 
or  the  rights  of  Roman  citizens:  afterwards,  the 
Jus  Ci^•itatis  was  conferred  on  kw,  and  generally 

with 


'y'??--;  •^i5:t^gEi?^;?g'i'^^^sS;''^ '  ''^^''m^^mm. 


ras  that 
;he  Jus 

om  the 
>f  small 
It  of  an 
first,  it 
Capitol 
•inal,  by 
us ;    the 
Viminal 
:ity  was 
on  each 
le  walls 
xtended 
)  extend 
it  exten- 
Lurelian : 
us  Mar- 
o  added 
divided 
divided 
ided  into 
;  ancient 
iiderably 

s  in  any 
Civitatis, 
ards,  the 
e!;enerally 

vitii 


THE  ROMAN  LAW. 


27 


with  limitations;  in  the  course  of  time,  it  was 
granted  to  all  of  the  Latin  name.  After  the  civil 
war,  it  was  conferred  on  all  of  the  inhabitants  of 
Italy,  south  of  the  Rubicon  and  Lucca:  then  it 
was  granted  to  the  Cisalpine  Gaul,  which,  from 
this  circumstance  was  called  Gallia  Togata :  final- 
ly, Caracalla  comnumicated  it  to  all  the  inhabi- 
tants of  the  Roman  world. 

The  Jus  Civitatis  conferred  on  those,  who 
possessed  it,  the  public  rights  attending  the  census, 
or  the  right  of  being  enrolled  in  the  censors' 
books;  the  Militia,  or  the  right  of  serving  in  the 
army;  the  Tributa,  or  the  right  of  taxation;  the  ^ 
Suffragium,  or  the  right  of  voting  in  the  different 
assemblies  of  the  people;  the  Honores,  or  the 
right  of  bearing  the  public  offices  of  the  state  i 
and  the  Sacra,  or  a  right  to  participate  in  the 
sacred  rights  of  the  city:  it  conferred  on  them  the 
private  rights  of  liberty,  family,  marriage,  parcn- 
tal  authority,  legal  property,  making  a  will,  sue 
ceeding  to  an  inheritance,  and  tutelage  or  ward- 
ship. 

The  citizens  of  Rome  were  divided  into 
Patricians  or  nobles,  and  Plebeians  or  inferior 
persons,  and  the  middle  order,  called  the  Equites. 
At  an  immeasurable  distance  beneath  the  Plebei- 
ans, were  the  slaves :  their  masters  might  set  them 
free,  they  were  then  called  freed-men;  but,  even 
after  they  were  set  free,  their  masters  retained  some 

ritfhts  over  them. 
^  The 


fp 


.k>^ 


28 


THE  ROMAN  LAW. 


*1 


III 


liJI 


ii 


The  Romans  were  divided  into  gentes  or  clans; 
their  clans  into  families;  their  families  into  indi- 
viduals.   Each   individual   had  a   prasnomen,   by 
which  he  was  distinguished  from  others;  a  nomen, 
which  denoted  his  clan;  and  a  cognomen,  which 
denoted  his  family;  sometimes  an  agnomen  was 
added,  to  denote  the  branch  of  the  family  to  which 
he   belonged.   Thus,  in  respect  to  Aulus  Virgi- 
nius  Tricostua  Coelimontanus, — Aulus,  the  prae- 
nomen,  denoted  the    individual;    Virginius,   the 
nomen  gentilitium,  denoted  that  he  was   of  the 
Virginian    clan;    Tricostus,   the   cognomen,   de- 
noted,   that  he  was  of  the   Tricostan   family  of 
*  that    clan;     and    Coelimontanus,    the     agnomen, 
denoted,  that  he  was   of  the  Coelimontan  branch 
of  that  family:    sometimes  a   further  name  was 
acquired,  as  Cunctator  by  Fabius,  and  Africanus 
by  Scipio,  in  consequence  of  an  illustrious  deed. 

Hi.  2.  Next  to  the  Citizens  of  Rome,  were 
the  Latins,  or  those  who  had  the  Jus  Lati't.  An- 
cient Latium  contained  the  Albani,  Rutuli,  and 
iEqui;  it  was  afterwards  extended  to  the  Osci, 
Ausones,  and  Volsci:  the  difference  between  the 
right  of  the  city  and  the  right  of  Latium  is  not 
precisely  ascertained:  the  principal  privilege  of 
the  Latins  seems  to  have  been,  the  use  of  their 
own  laws,  and  their  not  being  subject  to  the 
edicts  of  the  Prjetor;  and  that  they  had  occasional 
access  to  the  freedom  of  Rome,  and  a  participa- 
tion in  her  sacred  rites. 

III.  3.  The 


mm 


ifi 


'  clans; 
o  indi- 
en,  by 
nomen, 

which 
en  was 
3  which 

Virgi- 
le  prae- 
us,  the 

of  the 
en,  de- 
iiiiily  of 
;nomen, 

branch 
me  was 
.fricanus 
i  deed, 
le,  were 
itii.  An- 
tuH,  and 
tie  Osci, 
veen  the 
n  is  not 
,'ilege   of 

of  their 
t  to  the 
ccasional 
participa- 

[.  3.  The 


THE  ROMAN  LAW. 


29 


III.  3.  The  Italians,  or  those  who  had  the  Jus 
Italicum,  followed.  All  the  country,  except  Latium, 
between  the  Tuscan  and  Hadriatic  seas,  to  the 
rivers  Rubicon  and  Macra,  was,  in  this  sense  of 
the  word,  called  Italy:  the  Italians  had  not  access 
to  the  freedom  of  Rome,  and  did  not  participate 
in  her  sacred  rites;  in^  other  respects,  they  were 
nearly  on  a  footing  with  the  Latins. 

III.  4.  Those  countries  were  called  Provinces, 
which  the  Romans  had  conquered,  or,  in  an) 
other  way,  reduced  to  their  power,  and  which 
were  governed  by  magistrates,  sent  from  Rome. 
The  foreign  towns,  which  obtained  the  right  of 
Roman  citizens,  were  called  Miinicipia.  The  cities 
or  lands,  which  the  Romans  were  sent  to  inhabit, 
were  called  Colonia;  some  consisted  of  Citizens, 
some  of  Latins,  and  some  of  Iturums,  and  had 
therefore  different  rights. 

Prafectura,  were  conquered  townis,  governed 
by  an  officer  called  a  Praefect,  who  was  chosen  in 
some  instances  by  the  people,  in  others  by  the; 

Praetors. 

Cwitates  Fxderata,  were  towns  in  alliance  with 
Rome,  and  considered  to  be  free.  All  who  were 
not  Citizens,  Latins,  or  Italians,  were  called  Pen- 
grini  or  foreigners;  they  enjoyed  none  of  the  pri- 
vileges of  Citizens,  Latins,  or  Italians.* 

•  This  article  is  extraclcd  from  the  first  appendix  lo  ff'i. 
nccciu.'i's  .Intiquitutum  Komamriun  SinUagmu ;  and  (iravi- 
',„\  r.o^i-L  Dr  Orlu  r.'  fru^n-.^m  Jnrh  Chilix,  and  liis  Liber 

ninffiilarh 


m 


»'■ 


■■■!.. 


:l: 


[f  M. 


SK*»iwr 


.1>J' 


30 


THE  UOMAN  LAW. 


IV. 


SUCH  were  the  limits  of  the  Roman  empire, 
and  the  different  classes  of  Roman  subjects;— with 
respect  to  its  GOVERNMENT  AND  FORM  OF 
LEGISLATION. 

I'he  ROMAN  LAW,  in  the  most  extensive 
import  of  those  words,  denotes  the  system  of 
jurisprudence,  by  which  the  Roman  empire  was 
governed,  from  its  first  foundation  by  Romuhis,  to 
its  final  subversion  in  the  East,  in  consequence 
of  the  taking  of  Constantinople  by  Mahomet  IL 
THE  CIVIL  LAW  denotes  that  part  of  the  Ro- 
man  Law,  which  consists  of  the  body  of  law, 
compiled  bv  the  orders  of  the  Emperor  Justinian, 
and  of  the  laws  subsequently  enacted  by  him,  and 
called  his  Novells. 

The  writers  on  the  History  of  the  Roman 
Law,  generally  divide  it  into  three  aeras, — the 
Jurisprudentia  Antiqua,  Media,  and  Nova.  The 
first  commences  with  the  foundation  of  Rome, 
and  extends  to  the  aera  of  the  twelve  tiibles;  the 

^iiigularia  dc  Romano  Imlierio:  It  will  be  found  difficult  to 
mention  many  works,  which  a  practical  lawyer,  who  wishes 
to  relieve  his  mind  from  his  professional  labours  by  the  peru- 
sal of  a  work  of  taste,  on  a  subject  connected  with  them,  will 
read  with  so  much  pleasure  as  these  three  treatises:  and  from 
S/tanheim'a  Orbis  Romanus. 

second 


li^'HiJiag' 


,'fei.te^to^aA^^;^M.^k:^^^W.i^au^^!i'- "  "^"^••" 


■^iHMfl 


THK  ROMAN  LAW. 


31 


second  ext«*  ds  to  die  reign  of  the  emperor  Adrian ; 
the  third  to  the  reign  of  the  emperor  Justinian. 

IV.    I.  Js  it  was  constituted  by  Romulus,  the 
Roman  government  consisted  of  an  elective  King; 
a  Senate  or  Council,  first  of  one  hundred,  and  af- 
terwards of  two  hundred  nobles;  and  a   general 
assembly  of  the  people.    The   command  of  the 
army,  the  administration  of  Justice,  the  superin- 
tendence of  religious  concerns,  with  the  office  of 
high  priest,  belonged  to  the  King;  the  Senate  de- 
liberated on  all  public  business,  and  prepared  it 
for  the  people;  to  them  the  right  of  final  deter- 
mination upon  it  belonged.    The  number  of  Sena- 
tors was  successively  increased,  to  three  hundred, 
by  Tarquinius  Priscus;  to  six  hundred  by  Sylla; 
to  nine  hundred  by  Julius  Caesar;  Augustus  re- 
duced it  to  six  hundred.    That,  during  the  mo- 
narchy,  the  King  had  the  right  of  appointing  the 
Senators,  is  clear :  how  they  were  chosen  during 
the  sera  of  the  republic,  has  been  the  subject  of 
much  dispute :  some,  with  M.  de  Vcrtot,  M.  dc 
Beaufort,  and  Lord  Hervcy,  contend  that,  as  the 
Consuls  succeeded  to  the  royal  power,  they  en- 
joyed the  royal  prerogative  of  filling  up  the  Senate, 
till  the  creation  of  the  Censors,  to  whom  it  then 
devolved:    others  contend,   with  Dr.  Middleton, 
and  Dr.  Chapman,  that  the  Kings,  Consuls,  and 
Censors,    only  acted   in  these  elections,  ministe- 
rially and  subordinately  to  the  supreme  will  of  the 

people ; 


't- 


.,i._iti. 


!•! 


1|     .: 


ill 


32 


Tin:  ROMAN  l.AW. 


'i  '^1 
■p 

i'  ■''  . 


people-;  with  whom  the  proper  and  absoUite  power 
of  creating  Senators  always  resided 

The  people  were  divided  by  Romulus  into  three 
Tribes,  and  caeh  tribe  into  three  Curia.  Their 
public  assemblies  were  called  the  Comitia  Curiata: 
every   member  had  an  equal   right  of   voting  at 
them;  and  the  votes  were  reckoned  by  the  head. 
Thus,  the  issue  of  all  deliberations  depended  on 
the  poor,  as  they  formed  the  most  numerous  por- 
tion  of  the  community.     To  remedy  this,  Servius 
Tullius,  the  sixth  King,  divided  the  people  into 
six  classes,  according  to  a  valuation  of  their  estates, 
and  tb  mi  subdivided  the  classes   into  an   huiidred 
and    ninetv-threc    centuries,    and   threw    ninety- 
eight  of  the  centuries  into  the  first  class ;  twenty- 
two,    into  the  second;    twenty,    into  the  third; 
twenty-two,  into  the  fourth;  thirty,  into  the  fifth; 
and  the  remaining  part  of  the  citizens  into  the 
sixth.     The   first  class  consisted  of   the   richest 
citizens;    the  others  followed  in  a  proportion  of 
wealth ;  the  sixth  consisted  wholly  of  the  poorest 
citizens.     Each    century,    except    the    last,    was 
obliged  to  furnish  an  hundred  men  in  the  time  of 
war;  the  sixth  was  exempt  from  all  taxes;  and, 
to  compensate  this  privilege  to  the  rich,  Servius 
enacted    that,   in  the  assemblies  of  the   people, 
they   should  no  longer  count  the  votes  by  head, 
but  by  centuries,  and  that  the  first  century  should 
have   the  first  vote.    This  arrangement,  while  it 
seemed  to  give   every  citizen  an  equal  right  of 

suffrage. 


'■as.* 


.»a..«Pf  L»>mfffjimim^>ti^*';*i-  ■ 


t  power 

to  three 
.  Their 
Curiata: 
jting  at 
le  head, 
jded  on 
nis  por- 
Servius 
iple  into 
•  estates, 
hundred 
ninety - 
t^venty- 
le  third; 
the  fifth; 
into  the 
2   richest 
i5rtion  of 
2  poorest 
ast,    was 
e  time  of 
ices;  and, 
,  Servius 
;   people, 
by  head, 
ry  should 
,  while  it 
I  right  of 
suffrage. 


THE  ROMAN  LAW. 
suffraKC,  as  all  voted  in  their  respective  centuries, 
virtually  gave  the  richer  classes  the  sole  authority  : 
but  it  was  generally  acceptable,  as  it  conferred 
power  on  the  rich,  and  immunity  from  taxes 
and  the  other  burthens  of  the  state,  on  the  poor. 
These  assemblies  were  called  the  Comitia  Centu- 
riata.  For  some  purposes,  however,  particularly 
for  the  choice  of  inferior  magistrates,  and,  in  the 
time  of  the  republic,  for  vesting  military  power  in 
the  Dictator,  the  Consuls,  and  the  Praetors,  the 
Comitia  Curiata  continued  necessary. 

On  the  expulsion  of  the  last  Tarquin,  the  Se- 
nate seems  to  have  been  permitted  to  retain,  for 
some   time,  the  constitutional  power,  under   the 
regal    state,    of    the   monarchs   whom   they   had 
dethroned:   and   to   have   used  all  means   within 
their  reach  to  secure  to  them  the  enjoyment  of 
it.    During    this    period,    the    form    of   Roman 
legislation    appears  to  have    been,   1st,   that  the 
Senate  should   convene  the   Assembly,   whether 
of  Curiae,  or  Centuriae;   2dly,   that  the   Consul 
should   propound  to  them  the  matter  to  be  dis- 
cussed;  3dly,  that  the  Augur  should  observe  the 
omens,  and  declare  whether  they  were  favourable 
or  unfavourable; — in  the  last  case  the  assembly  was 
dissolved;  4thly,  that  the  assembly  should  vote; 
Sthly,  that  the  Consul  should  report  the  resolution 
of  the  people  to  the  Senate;  and,  6thly,  that  the 
Senate  should  confirm  or  reject  it. 
IV.  2.  These  were  the  rights  of  the  Consuls, 

G  the 


k^^ 


;m 


Tin:  ROMAN  1-A\V. 


i 


the  Sciuite,  uiid  thr  people,  at  the  commencement 
of  the  republic ;  si-ueral  alteration  HuccxsHfvely  took 
place,  in  llivour  of  the  people,  at  the  expence  ol" 
the  Consuls  and  tjje  Senate. 

With  respect  to  the  ('omuls,  their  dignity  and 
power   were,   hy   degrees,   parcelled   out    among 
various  magistrates:  thus  their  power  of  deciding 
in  civil    matters   was    assigned  to   the    Praetors; 
their  power   of  setting  criminal  prosecutions   on 
foot  was  assigned  to  the  Questors;  their  care  of 
the  police   to  the   Edilcs;  their  general  superin- 
tendence  of  morals  and  manners  to  the  Censors. 
After  this,  little  more  remained  to  the  Consuls, 
than  th'-ir  right  to  assemble  the  Senate,  convene 
the    Comitia,   and    command   tlu    armies   of  the 
republic.    The   Consuls  and   higher   magistrates 
were  chosen  by  the  people ;  at  first,  their  choice 
was  confined  to  the   Patrician  order:  after  much 
contest,  it  was  extended  to  the  people. 

The  influence  of  the  Patricians  on  the  delibe- 
rations   of   the    Comitia    Centuriata    was     soon 
thought  a  grievance  by  the  people:  hence,  upon 
every  occasion  which  oftcred,  they   endeavoured 
to  bring  the  business  before  die  Comitia  Curiata: 
but  with  this,  they  were  not  satisfied;  for,  as  a 
patrician   magistrate   only   could   preside   at    ihe 
Comitia  Curiata,   and   before  the  assembly  pro- 
ceeded to  business,  the  omens  were  to  be  con- 
sulted, and  none  but  Patricians  were  admitted  to 
the  rank  of  Augur,  the  Comitia  Curiata,  though 


\\\ 


iccment 
yely  took 
)cncc;  oi" 

nity  and 

amonp; 

deciding 

Praetors; 

tions  on 

r  cure  of 

superin- 

Censors. 

Consuls, 

convene 

s   of  tlie 

agistratcs 

ir  choice 

ter  much 

e  delibc- 
rcLH  soon 
ice,  upon 
leavoured 
I  Curiata: 
for,  as  a 
[e  at  ihe 
nbly  pro- 
3  be  con- 
Imitted  to 
a,  thougli 
in 


THF,  ROMAN  I-AW 


35 


in  a  less  degree  than  the  Comitia  Centnriata,  were 
still  subject  to  PatriciuM  influence.  'I'o  nuike  the 
people  entirely  independent   of  the  Patricians,  at 
their  general   assemblies,    the  Trilnnies  insisted, 
that  the   public  deliberations  should  lie  brought 
before  the  assemblies  of  the  tribes,  at  whirh  »-vcry 
Roman  citizen  had  an  ( qual  right  to  vote,  and  at 
which  neither  the    presence  of  a  magistrate,  nor 
the  taking  of  the  omens   was  essential.  To  this, 
the  Senate  and  Patricians  found   it  necessary  to 
submit.  At  first,  they  contended  that  thej-  were 
not  bound  by  the  laws  passed  at  these  assemblies, 
but  they  were  soon  forced  to  acknowledge  their 
authority.     These    assemblies    were    called     the 
Comitia  Tributa. 

Some   important  privileges,  however,   still   re- 
mained to  the  Senate:  they  had  the  direction  of 
all  concerns  of  religion;  the  appointment  of  am- 
bassadors, of  governors  of  the   provinces,  of  the 
generals   and  superior  officers  of  the   army,  the 
mana^ment  of  the  treasury;  and,  speakiig  gtne- 
r     . ,  they  had  the  direction  of  all  ihc   religious, 
civil,  and  military  concerns  of  the  state,  subject 
tu   the  control  of  the  people,  and  subject  also  to 
the   control  of  any  tribune  of  the  people,  who, 
by  his  veto,  might  at  any  time  prevent  the  re- 
solution of  the  Senate  from  passing  into  a  decree: 
but,   when  the  people  did  not  interfere,  the  Sc- 
natus-Consulta   generall)    were    ()be)e(l;    and    it 
seldom  happened  that,  in    .uttters  of  weight,  the 

people 


M, 


■iy*'"!*^*^ 


M 


■ill 


iUi 


I 


2g  THE  ROMAN  LAW. 

people  enacted  a  law,  without  the  autlriority  oi 
the  Senate.  Thus  the  constitutional  language  ot 
ancient  Rome  was,  that  the  Senate  should  de- 
cree,    and    the    People  order.    By  the  senators 
themselves,   it  was  deemed  an  heinous  offence, 
that    any  of   their    body,    without    their    leave, 
should  propose  a  measure  to  the  people:  but,  m 
the  decline  of  the  Republic,  the  leadmg  men  of 
Rome,  and  their  creatures,  paid  no  attention  to 
this    notion,    and  frequently   obtained  from  the 
people,  what  they  knew  would  be  refused  them 
by   the  Senate.  The  writings  of  Cicero  abound 
with   complaints  against  this  practice.    Ihe  ^e- 
termination   of  the  people,  at  the  Comitia  Cen. 
turiata,    Comitia    Curiata,   or  ComiUa    Tnbuta, 
was  equally  /ex,  or  a  law  of  the  state;  but  when 
it  passed  in  the  Comitia  Tributa,  as  it  ongma  ed 
wilh  the  people,  it    was    cMpleb.c^tun^:  i^c 
decrees  of  the  Senate,  were  called  Semtus-Con. 

*"  IV  3  The  laws  were  distinguished,  sometimes 
by  the  name  of  the  person  who  proposed  them 
as  the  law  Emilia:  sometimes,  by  the  names  of 
the  Consuls,  if  they  were  proposed  by  both  the 
Consuls,  as  the  law  PapiaPopp^a:  and  sonietimes, 
.  a  mention  of  the  nature  of  the  law  was  added,  as 
the  Lex  Fannia  Sumptuaria.*  ^^^ 

.  Sec  M.  de   Beaufort,  La   Ref^ublique  Romaine;  Pari., 

J:ir.....LeUer....enLor.Her.eya^.^nr. 


-  ■  '^^-^^^mmFm'mm^m^'Tmsi 


•i"«IS*!fc 


rity  oi 
lage  of 
lid  de- 
lenators 
offence, 
leave, 

but,  in 
men  of 
ition  to 
om  the 
:d  them 

abound 
rhe  de- 
tia  Cen- 
Tributa, 
ut  when 
riginated 
um:  the 
'.tus-Con- 

)metimes 
ed  them, 
names  of 
both  the 
metimes, 
added,  as 

FOR 

ine;  Parte, 

y  and    Dr. 

Middkton 


THE  ROMAN  LAW. 


V. 


FOR  obtaining  an  exact  view  of  the  HIS-  Before 
TORY  OF  THE  ROMAN  LAW,  it  may 
be  divided  into  nine  periods,  severally  be- 
ginning  with  the  following  epochs;   1st,  the 
foundation  of  Rome;    2d,  the  Twelve  Ta- 
bles;   3d,  the  abolition  of  the  Decemvirs; 
4th,  the  reign  of  Augustus;  5th,  the  reign  of 
Hadrian;  6th,  the  reign  of  Constantine  the 
Great;    7di,    the  reign  of  Theodosius  the 
Second;    8th,   the  reign  of  Justinian;    9th, 
the  reign  of  his  successors,  till  the  fall  of  the 
Empire  of  the  East ;  and  10th,  the  revival  of 
the  study  of  the  civil  law,  in  consequence  of 
the  discover}'  of  the  Pandects  at  Amalphi. 
A  short  view  should  be  hud  of  the  principal 
schools  in  which  the  civil  law  has  been  taught, 
and  a  short  account  of  its  influence  on  the  ju- 
risprudence of  the  modem  states  of  Europe. 

V.  1. 

V.  1.  THE  FIRST  OF  THESE  PE 
RIODS  contains  the  state  of  Roman  ju- 
risprudence from  the  foundation  of  Rome, 
till  the  »ra  of   the  Twelve .  Tables.     As 


r5:3 


Middkton  concerning  the  Roman   Senate;  London  1778,  Mo, 
and  the  12,  13,  14,  om/  H  Cfia/ifer^  of  Montesquieu,  I.  U. 

Rome 


S?^fp» 


M 


38 


THE  ROMAN  LAW. 


Rome  was  a  colony  from  Alba,  it  is  pro-  Bef^^^ 
bable  that  her  laws  originated  in  that  city . 
Several  of  them  are  actually  traced  to  her 
first  kings;  particular  mention  is  made  of 
laws  enacted  by  Romulus,  Numa,  and  Ser- 
vius  Publius.  Historians  ascribe  to  Romulus 
the  primitive  laws  of  the  Romans,  respecting 
marriage,  the  pov/er  of  the  father  over  his 
child,  and  the  relation  between  patron  and 
client :  to  Numa,  their  primitive  laws,  re- 
specting property,  religion,  and  intercourse 
Avith  foreign  states ;  to  Servius  TuUius,  their 
primitive  laws  respecting  contracts  and  obli- 
gations. It  is  supposed  that,  in  the  reign  of 
the  last  of  these  kings,  a  collection  of  their 
laws  was  promulgated  by  public  authority. 
The  scanty  materials  which  have  reached  us, 
of  the  regal  jurisprudence  of  Rome,  lead  to  a 
conjecture  that  the  Romans  had  attained  a 
high  degree  of  legislative  refinement  before 
the  abolition  of  royalty. 

Tarquin,  the  last  king  of  Rome,  was  ex- 
pelled in  -  -  -  - 

Not  long  before  or  after  his   expulsion, 

u  body  of  the  Roman  law,  as  it  then  stood, 

was  collected  by  Papyrian,  and  from   him 

was  called  Jus    Civile  Papyriantim.     The 

president  Terrasson,  in  his  Histoire  de  la 

Jurisprudence    Romainc,    Paris,    1750,    in 

folio. 


Anno 
Urbis 
Condttz. 


509 


a45 


.«#'»»'■ 


Before    Anno 


Christ. 


Urbis 
Conditz. 


509      245 


folio, 


THE  ROMAN  LAV/. 

folio,  p.  22—73,  professes  to  restoic  the  ori-  ^^^^ 
ginal  of  this  compilation,  as  far  as  the  mate- 
rials, which  have  reached  us,  allow:  he  has 
given  us  thirty-six  laws,  fifteen  of  them  as 
original  texts,  twenty-one  as  the  substance 
or  sense  of  texts  which  are  lost. 


V.  2. 

THE  SECOND  PERIOD  OF  THE 
HISTORY  OF    THE  ROMAN  LAW  is, 

the  £era  of  the  Twelve  Tables. 

During  the  first  half  century  which  fol- 
lowed the  expulsion  of  the  Tarquins,  the 
civil  government  of  the  Romans  was  in  great 
confusion:  on  their  expulsion,  much  of  the 
ancient  law  was  abrogated  or  fell  into  disuse, 
and  some  new  laws  were  enacted  by  the 
Consuls. 

The  arbitrary  and  undefined  power  of  the 
Consuls  in  framing  laws  growing  very  odi- 
ous, three  persons  were  sent  into  Greece, 
and  probably  to  some  of  the  most  civilized 
states  of  Magna  Grjecia  or  Lower  Italy,  to 
obtain  copies  of  their  laws  and  civil  institu- 
tions. -  -  .         -  - 

They   returned    in    the    third  year   after 
their  mission.     Ten   persons,    called  from 
their  number  Decemvirs,    were  then    ap- 
pointed to  form  a  code  of  law  for  the  go- 
vernment 


453 


301 


:i 


;■  4' 


4y  rHE  ROMAN  LAW. 

vernnv^nt  of  the  state,  both  in  private  and  b«^j« 
public  concerns.  This  they  effected,  and  di- 
vided their  code  into  ten  distinct  tables :  two 
were  added  to  them  in  the  following  year. 
They  were  a  mixture  of  the  laws  of  other 
nations,  and  of  the  old  Roman  law,  adapted 
to  the  actual  circumstances  of  the  state  of  the 

1  45 

people  -  -  *  " 

They  were  inscribed  on  twelve  tablets  of 
brass;   and,  from  that  circumstance,   were 
called  the  Laws  of  the  Twelve  Tables.   The 
twelve  tablets  were  exposed  to  the  view  of 
every  person,  in  a  public  part  of  the  market 
place.    In  the  sack  of  Rome,  by  the  Gauls, 
they  perished:  immediately  after  the  expul- 
sion of  the  Gauls,  they  were  restored,  and 
the  whole  text  of  them  was  extant  in  the  time 
of  Justinian:   fragments  only  of  them  have 
reached  us.    Gothofrcd's   edition   of   these 
fragments,  in  his  work  intituled  Fofites  Qua- 
fuor  Juris  Civilis,  Geneva,  1653,  in  octavo, 
has  obtained  the  universal  applause  of  the 
learned  •   the  fragments  of  them  have  also 
been  published  by  the  president  Terrasson; 
and  Pothier  has  inserted  them  in  his  Pandectse 
Justinilnea;,  with  an  interpretation,  and  an 
excellent  commentary. 

The   legislative  wisdom  of   the   Twelve 
Tables  i.as  been  highly  praised;  but  it  has 


Anno 
Urbiii 
Condlti 


303 


been 


^  »■   /""-mii 


\  Bet'ci-e 

Christ. 


Anno 
Urbiii 
Conditz 


451       303 


THE  ROMAN  LAW. 


41 


been  thought,  in  some    instances,  immoderately 
severe.  Thus,  in  respect  to  an  insolvent  debtor — 
after  the  debt  was  proved  or  admitted,  they  al- 
lowed him  thirty  days  to  raise  the  money,  or  find 
surety  for  the  payment  of  it:  at  the  end  of  the 
thirty  days,  the  law  delivered  him  into  the  po\vcr 
of  his  creditor,  who  might  confine  him  for  sixty 
days  in  a  private  prison,  with  a  chain  of  fifteen 
pounds  weight,  on  a  daily  allowance  of  fifteen 
pounds  of  rice :  during  the  sixty  days,  he  was  to 
be  thrice  exposed  in  the  market-place,  to  raise  the 
compassion  of  his  countrymen:  at  the    end    of 
sixty  days,  if  he  was  sued  by  a  single  creditor, 
the  creditor  might  sell  him  for  a  slave   beyond 
the  Tyber;  if  he  was  sued  by  several,  they  might 
put  him  to  death,  and  divide   his  limbs  among 
them,  according  to  the  amount  of  their  several 
debts.    Nothing  can  be  urged  in  defence  of  this 
savage  provision,  if,  as  appears  to  be  its  true  con- 
struction, [a]  the  division,  which  it  directs  to  be 
made,  is  to  be  understood  literally'  of  the  body, 
and  not  of  the  price  of  the  debtor:   but  if,  before 
the  Twelve  Tables,  an  insolvent  debtor  became  the 
slave  of  the  creditor,  so  that  his  liberty  and  life 
were  immediately  in  the  power  of  the  creditor,  the 
ultimate  severity  of  the  provisions  of  the  Tivelve 
Tables  should  be  ascribed  to  the  harsh  spirit  of 
the  people,  and  the  intermediate  delays  in  favour 
of  the  debtor  should  be  ascribed  to  the  humane 
policy  of  the  Decemvirs.    It  may  be  added,  that, 


fa  1  See  on  this  subject  Bynkershoek  Ohservat.  Jur.  Ro- 
/HOW.  Book  1.  ch.  I.  where  this  question  is  discussed  in  a  very 
iiitcrtstinff  manner. 

H  about 


V*'t 


t-' 


42  THE  ROMAN  LAW. 

about  t\vo  hundred  years  afterwards,  the  Petilian 
law  provided  that  the  goods,  and  not  the  body  of 
the  debtor,  should  be  liable  to  his  creditor's  de- 
mands; and,  at  a  subsequent  period,  the  Julian 
law  provided,  in  favour  of  the  creditor,  the  Cessio 
Bononirn,  by  which  the  debtor,  on  making  over 
his  property  to  his  creditors,  was  wholly  liberated 
from  their  demands.  [6]  Upon  the  whole,  if  we  con- 
sider the  state  of  society,  for  which  the  laws 
of  the  Twelve  Tables  were  formed,  wc  shall  find 
reason  to  admit  both  their  wisdom  and  their  hu- 
manity. 

The  journey  of  the  Decemvirs  into  Greece 
has  been  questioned  by  M.  Bonamy,  Mem.  de 
r  Academic,  12  vol.  p.  27,  51,  75;  and  his  doubts 
have  been  adopted  by  Mr.  Gibbon;  but  the  fact 
is  either  related  or  alluded  to  by  almost  every  Ro- 
man author,  whose  works  have  come  down  to 
us:  and  some  writers  have  professed  to  track  the 
jurisprudence  of  Greece,  even  in  the  legislative 
provisions  of  the  Prcetors,  Consuls  and  Emperors. 


o. 


V.  In  proportion  as  Rome  increased  in  arms, 
arts,  and  the  number  of  her  citizens,  the  insuf- 
ficiency of  the  laws  of  the  Twelve  Tables  was 
felt,  and  new  laws  were  passed.  This  insensibly 
produced,  during  the  remaining  part  of  the  period 

of 

[bl  Ti'C  ceit.no  bonorum  or  cesnio  miaerabilis,  was  indeed  esta- 
blished at  Rome  by  the  Julian  law,  but  it  did  not,  as  our 
learned  author  supposes,  wholly  liberate  the  debtor  from  his 
i  rcditor's  demands.  It  merely  freed  his  person  from  impri- 
sonment, 


THE  ROMAN  LAW.  43 

of  the  republic,  which  forms  THE  THIRD  PE- 
RIOD OF  THE  HISTORY  OF  THE  ROMAN 
LAW,  that  immense  collection  of  laws,  from 
which  the  civil  law,  as  the  Justiniancan  body  of 
law  is  called,  was  extracted,  and  which,  on  that  ac- 
count, deserves  particular  consideration. 

It  was  divided,  like  the  law  of  Greece,  into  the 
written  and  unwritten  law.  The  written  compre^ 
hended  the  Leges,  Plebiscita,  and  Scnatus-Consul- 
ta,  which  have  been  mentioned. 

1.  The  first,  and  most  important  branch  of  the 
unwritten  law  of  Rome  was  the  Jus  Honorarium, 
the    principal    part    of  which  was  the   EdictuHt 
Pratoris.     During    the     regal     government    of 
Rome,   the    administration   of  justice    l^elongcd  ' 
to  the  king:  on  the  establishment  of  the  republic, 
it  devolved  to  the  Cftnsuls,  and  from  them  to  the 
Prator.    At  first,  there  was  but  one  Praetor;  af- 
terwards, their  number  was  increased  to  two;  the 
PraJtor  Urbanus,  who  administered  justice  among 
citizens  only;  and  the  Praetor  Pcregrinus,  who  ad- 
ministered justice  between  citizens  and  foreigners, 
or  foreigners  only  :  the  number  of  Prstors  was 
afterwards   increased,  for  the    administration    of 
justice  in  the  provinces  and  colonies.    When  the 
■prator  entered  on  his  office  he  published  an  edict, 
or   system  of  rules,  according  to  which  he  pro- 
fessed to  administer  justice  for  that  year.    In  con- 
sequence of  his  often  altering  his  edicts,  in  the 
course  of  the  year,  hu\s  were  passed,  ^^hich  en- 
joined 

sonmcnt.  and  the  property  uWch  he  aftcruurcls  acquired,  .vuis 
liable  to  the  puvmentolhis  debts,  us  it  is  under  our  Pennsyl- 
vania Insolvent'  Law.  It  is  clear  that  u  was  so  from  the  ex- 
press words  of  thv  code:  Qui  bonis  ct'dcrmt,  msi  aohdumcie. 


I  '     i 


■  i. 


I ,' 


44 


THE  ROMAN  LAW; 


joined  him  not  to  deviate  fiom  the  form,  whicli 
he  should  prescribe  to  himself,  at  the  beginning 
of   his    office.     All    magistrates    who    held    the 
offices,  which  were  ranked  among  the  honours  ot 
the  state,  had  the  same  right  of  puhlishuig  edicts ; 
and,   on  this   account,    that    branch  of  the  law, 
which  was  composed  of  the  edict  of  the  Prajtor, 
and  the   edicts  of  those   other  magistrates,    Avas 
called  the  Jus  Honorarium  :  but  the  edicts  of  the 
Trajtor  formed  by  far  the  most  important  part  of 
this  branch  of  the   Roman   law.    Such  were  his 
rank  and  authority  in  Rome,   and  such  the   in- 
fluence of  his  decisions  on  Roman  jurisprudence, 
that  several  writers  on  the  Roman  law  mention 
Iiis  edicts  in  terms,  which  seem  to  import  that  he 
possessed  legislative,  as  well  as  judicial  power ; 
and  make  it  difficult  to  describe  with  accuracy, 
what  is  to  be  understood  by  the  Praetor's  edict. 
Perhaps   the   following  remarks  on  this  subject 
%vill  be  found  of  use,  and  show  an  analogy  be- 
tween some  parts  of  the  law  of  which  the  hono- 
rary  law  of  Rome  was  composed,  and  some  im- 
portant branches    of  the  law  of  England. — 1st. 
By  the   Praetor's  edict,  as  those  words  apply  to 
the  subject  now  under  consideration,  civilians  do 
not  refer  to  a  particular  edict,  but  use  the  words 
to  denote  that  general  body  of  law,  to  which  the 
,  edicts  of  the  Praetors  gave  rise. — 2dly.    It  is  to 
be  observed,  that  the  legislative  acts  of  any  state, 
form  a  very  small  p  oportion  of  its  laws :  a  much 

greater 

ditor  recefrr  it^non  sunt  liberati.  In  eo  enim  tantum  modo  hoe 
hm-Jicium  H»  /irodesl,  ne  judicati  detrahentur  in  carcerem. 
"  Those  who  have  made  a  cession  of  their  property  (ceasio 
boTwrum)  are  not  discharged  from  their  debts  unless  their 

creditors 


>vas 


TIIK  IIOMAN  l-AW.  15 

greater  proportion  of  them   consists  ol"  that  ex- 
plaiutioii  of   the    Kcneral    body    of   the    national 
law,  which  is  to  be  collected  from  the  decisions 
ofits  courts  of  judicature,  and  which  has,  there- 
fore,    the   appearance    of   being    framed   by   the 
courts.    A   consideral)le  part  of  the  law,   distin- 
guished l)y  the  name  of  the  Pra-tcir's  edict,  was 
of  the  last  kind;   and,  as  it  wfc  a  consequence  of 
his  decisions,  received  the   general  name  of  his 
law.   In  this  respect,  the  legal  policy    of    Eng- 
land is  not  unlike  that  of  Rome;    for,  volumi- 
nous as  is  the  statute  book  of  England,  the  mass 
of  law    it  contains  bears   no  proportion  to    that 
which  lies  scattered  in   the   volumes   of  reports, 
^vhich  fill   the   shelves    of  an    English    lawyer's 
library:  and  perhaps  it  would  be  difficult  to  find, 
in  any  edict   of  a  Prietor,  a  more  direct  contra- 
diction of  the  established  law  of  the   land,    than 
the  decisions   of  the  Juiglish  judges,    which,    in 
direct  opposition  to  the  spirit  and  language  of  the 
statute  de  donis,  supported  the  effect  of  common 
recoveries  in  barring   estates    tail.— 3dly.  Expe- 
rience shews,  that  the  provisions  of  law,  on  ac- 
count of  the  general  terms,  in  which  they  are  ex- 
l)ressed,  or  the  generality  of  the  subjects  to  ^vhich 
ihey  are  applicable,  have  frequently  an  injurious 
opJration    in    particular   cases,  and  that   circum- 
stances   frequently  arise,  for  which  the   law  has 
made  no  provision.  'I'o  remedy  these  inconveni- 
ences, the  courts  of  judicature  of  most  countries, 

which 

(  rccUtors  are  paid  in  full.  Tlu-  only  benefit  which  they  derive 
from  it,  is  tliat  after  judgment,  they  cannot  be  thrown 
into  prison."  Cod.  li.  7.  Tit.  7\.  L  1.  Ibe  same  doc- 
triiic  is  laid  down  ia  the  digest:  h  qui  boms  cemt,  «  y«"^ 

floated 


%i 


,.Wii 


40 


THE  ROMAN  LAW. 


*l  11 


vliich  have  attained  a  certain  degree  of  politic al 
refinement,  haVL  assumed  lo  themselves  a  right  of 
•administering  justiee  in  particular   instances,   by 
certain    equitable    principles,    which    they   think 
more  likel)'  to  answer  the  general  ends  of  justice, 
than  a  rigid    adherence  to  law;  and,  where    law 
is  silent,    to  supply  its  defects  by    provisions  of 
tluir  own.    These*  privileges    were    allowed   tin; 
IVcKtor  by  the  law  of  Uome;  in  virtue  of  them, 
he    pronounced    decrees,    the    general    object   of 
which  had    sometimes  a   corrective,    and    some- 
times a  suppletory  operation  on  the  subsisting  laws. 
They  were    innovations;    but    it    may    be   (pies- 
tioned,    whether    any    part    of  the   Prastor's  law 
was  a  greater  innovation  on  the  subsisting  juris- 
prudence of  the  country,    than  the   decisions    of 
Knglish   courts  of  equity  on    the  statute  of  uses 
and  the  statute  of  frauds.— 4thly.    The   laws  of 
every  countrv  allow  its  courts  a  considerable  de- 
gree of  power  and  discretion    in    regidating   the 
Forms  of  their    proceedings,    and    carrying  them 
into  effect;  further  than  this,  the  Prstor's  power 
of  publishing  an    edict,  signifying  the  rules  by 
which  he   intended  the  proceedings  of  his  courts 
should  be  directed,  does  not  appear  to  have  ex- 
tended.—These  observations  may  serve  to  explain 
the   nature  of  the  Prcetor's   jurisdiction,   and  to 
shew  that  the  exercise  of  his   judicial  authority 
was  not  so  extra\a«2;ant  or  irregular  as  it  has  some- 
limes  been  described.*"' 

*  Sec  ApptiuliK,  Xtiti:  ni 

2.  A  second 

lioatca  uduuhicril,  in  (jmntifm  facvrr  /;,.',..■,  r.nvcvitur.  |'  If  hr 
who  has  made  a  ccssio  bonoruw  shuulil  ultorwavds  acquire  any 
property,  he  mav  be  sued  and  c.n.pellufUo  pay  to  the  extent 

pf  his  means."  'm^-  /r  u.  nt.  :>.  .'■  4 


1  Siiu 


WWW^mmmm»mAm-Jim'^«' 


rilF  ROMAN  LAW. 


47 


politKul 
right  of 
CCS,   by 
Y   think 
justice, 
crc    law 
sions  of 
vcd   tlic 
jf  the  in, 
bjcct   of 
I    some- 
inj;  hiws. 
)c   qucs- 
or's  law 
ig  juris- 
sions    of 
;  of  uses 
laws  of 
rable  cle- 
iting   the 
ng  them 
•'s  power 
rules  by 
is  courts 
have  ex- 
o  explain 
I,   and  to 
authority 
vas  somc- 


A  second 

imr.  "  If  he 
acquire  any 
0  the  cKteni 


2.  A  second  source   of    the    \im\ritten  law  of 
Rome  was,  the  Jctiones  Legis,  and  Suleiwus  Lvi^inn 
For/nula,  or  the  Actions  at  Law,  and  Forms  of 
I'orcnsir    proceedings,    and   of  transacting    legal 
acts.     These,  for    some  time,  were  kept  a    pro- 
found   secret    by    the    Patricians;    but,    Appius 
Claudius  having  made   a  collection  of  them    for 
his  private  use,  it  was  published  by  Cna:us  Fla- 
vius,  his  secretary.    The  Patricians  then  devised 
new  forms,  and  those  were  made  public  by  Sextus 
^lius.    These  publications  were  called  the    Fla- 
vian and  JVWhn  ColU(  tions;  all  we  have  of  them 
is  to  be  found  in  Brisson's  celebrated  work,  De 
Formulis(  t  Solemnibus  Populi  Romani  V^crbis. 

3.  A    third    source   of  the    unwritten   law   of 
Rome   was  derived  from  the  Disptitatmws  Forty 
and  the  Responsa  Prudentum.    Mention  has   been 
made    of  the    relation     introduced    by    Romu- 
lus   between   patron    and    client;— to    give    his 
client  legal  advice  was   among  the  duties  of  the 
patron ;    insensibly,  it  became  a  general  practice, 
that  those,  who  wanted  legal   assistance,    should 
apply  for  it  to   the  p(  rsons  of  whose  legal  skill 
they   had   the   greatest   opinion.     I'his    was   the 
origin  of  the  Jurisconsult!  or  Civilians  of  Rome; 
they  were,  generally,  of  the  Patrician  order ;  and, 
from  succeeding  to    this  branch   of  the  duty  of 
patronage,  received  ihe  name   of  patrons,    while 
those,  by  whom  they  were  consulted,  were  called 
qlients.    The  patron  received  his   client  with   a 

solemnity 

When  a  person  applied  for  the  henefit  of  the  Julian  Law, 
the  creditors  hud  their  election  either  to  grant  to  the  insol- 
vent a  letter  of  licence  for  five  years,  or  to  take  a  general  as- 
signment of  all  hiij  property  on  condition  that  he  bhould  not 


l-t 


^ 


When 


48 


rili;  ROMAN  I-A\V 


i!^ 


II 


solemnity  horckriiig  on  maRistcriiil  dignity;   and 
ginirally  delivered,  in  a  lew  words,  his  opinion 
on  tlic  case  ivhich  was  sulMnitlcd  to  his  conside 
lation;  but  he   somctinus   accompanied   it    with 
his  reasons.     These    consultations    usually    took 
place  at  an  early  liour  in  the  morning:  the  broken 
slumbers  of  the  Civilians  arc  mentioned  by  every 
Roman  poet  whose  muse  has  led  him  to  describe 
the   inconveniences  which  attend  distinction    and 
fiime.    Legal  topics    were  often   subjects   of  the 
conversations  of  Civilians;  and  the  forum,  from 
their  iVeciuent  resort  to  it,  being  the  usual  scene 
of  these    friendly  disputations,  gave  its  name  to 
them.    They    also    published   treatises    on    legal 
suljjects.     Their    opinions    and     legal    doctrines 
were  highly  respected;  but,  till  they  were  ratified 
by  a  judicial  elecision,  they  had  no  other  weight 
than  what  they  derived  from  the  degree  of  public 
estimation,  in  whicli  the  persons   who  delivered 
them   were   held.     The  Civilians   arc   commonly 
divided  into  three  classes ;  those,  who  flourished 
between  the  cera  of  the  Twelve  Tables,    and  the 
age    of    Cicero;  those  who    flourished   from  the 
age  of  Cicero,  to  the  reign  of  Severus  Alexander ; 
and  those  who  flourished  from  the  beginning  of 
his   reign,    to  that    of    the    EmpeK.i-    Justinian. 
The  second,  is  the  golden   period  of   Antejusti- 
nianean  jurisprudence.  From  the  fragments  which 
have    reached  us,  of   the.    works  of   the    Civili- 
ans  who  flourished  during  that  period,  modern 
writers  have  thought  themselves  justified  in  de- 
scribing 

be  inipiiboncd,  ■■^mioro  cnntr  ror/ioris  cntciatu.  Cod.  B.  7.  Tu. 
7.1.«. 


-  '.'KAit'::^  - 


ty ;   and 

opinion 
consitlf 

it  with 
lly  took 
2  broken 
t)y  every 
describe 
ion  and 
i  of  the 
im,  from 
I  ill  scene 

name  to 
on  legal 
doctrines 
re  ratified 
er  weight 
of  public 
delivered 
ommonly 
flourished 
and  the 

from  the 
lexandcr ; 
inning  of 
Justinian. 
Antejusti- 
nts  which 
le  Civili- 
l,  modern 
ed  in  de- 
scribing 

id.  B.  7.  Tit. 


THE  ROMAN  LAW. 


'ly 


scribing  them  as  men  of  enlarged  minds,  highly 
cultivated    understandings,    and    great    mode!»ty. 
In  their  judicial  studies  tiu  y  availeil  themselves  of 
tlu    learning   and  philosophy  of  the  Greeks,  Ciir- 
ried  the  disputes  of  the  schools  of  Athens  intd  the 
Forum;  and,  early  in  the  period  we  arc  i.peakinrj 
of,  branched  iiUo  two  sects,  whose  opposite  ter.<'ts 
were    founded   on    principles,    not   uuiike    those, 
which  gave  rise  to   the    distinctive   doctrine;   of 
the   disciples  of  Zeno  and  I'picuru.s.     Aulistius 
Lubeo    was    the    founder   ol     the     former    sect; 
Ateias  Capito  of  the  latter:  from  Prooulus  and 
Pegasus,   two  eminent  followe's   of    J.jibeo,  the 
former    were   called    Proculeians    or    I'egasiai  ^\ 
from  Masurius  Sabinitis  and  Cassius   Longii  i;j, 
two  eminent  followers  of  Capito,  the  laiter  were 
called   Sabinians   or   CussiaMs.     The  io.Mer  con- 
tended for   a    strict   adhciencc  to    tue  letter  and 
forms  of  the  law;  the  latter  for  a   benign   inter- 
pretation of  it,  and  for  allowing  great  latitude  in 
the  observance  of  its  forms.  Attempts  were  made 
to  compromise  the  difference  bctweei.  them:  they 
gave  rise  to  a  third  sect,  the  Jurisconsulli  ercis- 
cundi    or    miscallioncs.    Something    of  the    dif- 
ference which  subsisted  between  the  disciples  of 
Labco  and  Capito,  has  long  subsisted  \\\  the  ju- 
risprudence of  England,  !^"t  the  good  sense   of 
the  English  bar  has  prev^tLcd  the  maintainers  of 
the   different  opinions   from   forming  themselves 
into    sects.     Till    the    reign  of  Augustus   every 

I  person 


1 


i  !■' 


1 


^^  THE  ROMAN  LAW. 

person  was  at  liberty  to  deliver  judicial  opinions; 
Augustus  confined  this  privilege  to  particular 
persons,  with  a  view,  it  is  supposed  of  their  pro- 
pagating  those  rl,  ctrines  of  law,  which  were  fa. 
vourable  to  his  political  system:  the  Emperor 
Adrian  restored  the  general  liberty ;  the  Emperor 
Severus  Alexander  assigned  it  the  hm.ts  withm 
which  it  had  been  circumscribed  by  A^ «t»^; 

These  .vrc  the  materials  of  which  the  written 
and  unwritten  law  of  Rome  was  principally  formed. 

V.4. 
THE  FOURTH  PERIOD  OF   THE  ^^l 
HISTORY  OF  THE  ROMAN  LAW,  is 

that  which  fills  the  space  between  the  time 
when  Julius  C«:sar  was  made  perpetual  Dic- 
tator, and  the  reign  of  the  Emperor  Adrian. 
The  power  of  Julius  Ca:sar,  in  consequence 
of  his  perpetual  dictatorship,    placed  him 
above  law;  but  it  does  not  appear  that  he 
mademany  innovations,  of  a  general  nature  m 
the  Roman  jurisprudence.    1  ^at  was  left  to 
Augustus,  his  heir  and  successor.  At  different 
periods  of  his  reign,  the  people  conferred  on 
Augustus  the  various  titles  of  Perpetual  Tri- 
bune,  Consul,  Proconsul,  Censor,  Augur, 


Anno 
Urbis 
Conditi 


46    708 


unions; 
rticular 
eir  pro- 
fcve  fa- 
Imperor 
Imperor 
(  within 
stus. 
written 
formed. 


rF    Before  Anno 


Christ, 


I  IS 

me 
le- 
an, 
ice 
lim 
he 
:,in 
tto 
•ent 
L  on 
rri- 


Urbis 
Condlti 


46    708 


THE  ro:man  law. 


16    735 


and  High  Priest:    thus,  in  effect,  he  ac-  ^^J^^ 
qnired  both  the  civil  and  military  power  of 
the  state;  but,  as  he  professed  to  exerciic  it 
in  virtue  of  those  offices,  his  acts  had  the 
appearance  of  being  the  acts  of  the  different 
magistrates,  whose  offices  had  been  confer- 
red on  him.    Finally,  in  the  year  of  the  city, 
735,  power  was  given  him  to  amend  or 
make  whatever  laws  he  should  think  pro- 
per.   This  was  tlie  completion  of  the  Lex 
Regia,  or  of  those  successive  laws,  which, 
>vhile  they  permitted  much  of  the  outward 
form  of  the  republic  to  remain,  invested  the 
the  emperor  with  absolute  power. 

During  the  whole  of  Augustus's  reign, 
the  forms  of  the  Leges  and  Senatus-con- 
sulta,  those  vestiges  of  dying  liberty,  as  they 
are  called  by  Tacitus,  were  preserved. 

For  the  Senate,  Augustus  uniformly  pro- 
fessed the  greatest  deference;  he  attended 
their  meetings,   seemed  to  encourage  their 
free  discussion  of  every  subject,  which  came 
before  them;  and,  when  a  law  was  approved 
of  by  them,  he  permitted  it,  agreeably   to 
the  ancient  forms  of  the  republic,  to   be 
referred  to  the   people.    The  reference  of 
laws  to  the  people  was  abolished  by  Tibe- 
rius; so  that,  from  his  time,  the  laws  of 
Rome  originated  and  were  completed  in  the 
Senate.  At  first  their  deliberations  had  an 

appearance 


Anno 
ITrbis 
Cuiiditsc 


III' 


52 


THE  ROMAN  LAW. 


appearance  of  free  discussion;  by  degrees,  even 
that  vanished,  and  insensibly  the  Senate  served  for 
little  more  than  a  nominal  council  of  the  Emperor, 
an  office  to  register  his  ordinances,  and  a  court  ot 
judicature  for  great  public  causes. 

V.  5. 
THIS  memorable  revolution  in  the   functions 
of  the   Senate,  with  which  even  the  forms   of 
Roman  liberty  expired,  must  be  dated  from  tlie 
Emperor  Adrian,  and  forms  the  FIFTH  PERIOD 
OF    THE    HISTORY    OF    THE    ROMAN 
LAW.    He  was  the  first  of  the  Emperors  who 
exercised,  without  disguise,  the  plenitude  of  legis- 
lative power.    With  him   therefore,  the  Imperial 
Constitutions,  under  the  various  names  of  Rescnpta, 
Epistolas,    Decreta,    Edicta,    Pragmatics    Sanc- 
tiones,    Orationes    and  Annotationes,  ongmated; 
they  had  th-  ^orce  of  law  in  every  part  of  the 
Roman  state.    I'nder  his  reign,  Julian,  a  la^yyer 
of  great  eminence,  digested  the  Prstor's  edicts, 
and  other  parts   of  the  Jus  Honorarium,  mto  a 
regular  system  of  law,  in  fifty  books.    This  com- 
Dilation  was  much  esteemed;  it  was  referred  to  as 
authority,  and  obtained  the  title  of  Edictiim  Per- 
petuum;  all  the  remains  of  it,  which  have  come 
down  to  us,  are  tlie  extracts  of  it  in  the  digest; 
they  have  been  collected  with  great  attention,  by 

Simon 


.ii 


-f^ 


THE  ROMAN  LAW. 


53 


Simon  Van  Leeuwen,  at  the  head  of  the  Digest,  Af\er^ 
in  his  edition  of  Gothofred's  Corpus  Juris  Civihs, 


Lugd.  Batav.  1663. 

It  was  a  remarkable  effect  of  the  Edictum  Per- 
petuum,  to  put  an  end  to  the  legal  schism  of 
the  Sabinians  and  Proculeians.  By  countenancing 
the  former,  in  the  dictum  Perpetuum,  the  Empe- 
ror Adrian  terminated  the  dispute. 

After  this  came  the  Codex  Gregorianus;  a  collec- 
tion of  imperial  constitutions,  from  Adrian  to  Dio- 
clesian,  by  Gregorius  or  Gregorianus,  Praetorian 
Preefect  to  Constantine  the  Great. 

This  was  succeeded  by  the  Codex  Jlermogenia- 
mis,  a  continuation  of  the  former  code,  by  Her- 
mogenes,  a  contemporary  of  Gregorius  or  Gre- 
gorianus. 

Y.  6. 

THE  SIXTH  PERIOD  OF  THE  ROMAN 

LAW  extends  from  the  reign  of  Constantine  the 
Great  to  that  of  the  Emperor  Theodosius  the 
Second.  It  is  particularly  remarkable  for  having 
furnished  many  new  articles  of  great  importance  to 
the  jurisprudence  of  Rome. 

They  chiefly  arose  from  the  foundaition  of 
Constantinople,  the  new  forms  of  civil  and  mili- 
tary government  introduced  by  Constantine,  the 

legal 


120 


284 


306 


H 


w 


h  r 


g^  THE  ROMAN  LAW  . 

legal  establishment  of  Christianity,  and  the  divi-  Aftot-^ 
sionof  the  empire  between  the  sons  of  Theodosius 
the  Great.  To  the  first  may  be  referred  numerous 
laws,  respecting  the  priv>)e^s  and  police  of  the 
imperial  city;  to  the  second,  an  abundance  of 
leeal  provisions,  respecting  the  various  officers  of 
the  empire,  and  the  ceremonial  of  the  Byzantme 
court;  to  the  third,  a  succession  of  impcrud  edicts, 
bv  which  Christianity  was  first  tolerated,  then  le- 
galized, and  afterwards  became  the  established  re- 
ligion of  the  state. 

The  division  of  the  empire  between  the  sons  ol 
Theodosius,  in  395,  was  attended  with  still  more 
important  effects  on  Roman  jurisprudence.  395 

V.  7. 

THE  variety  of  laws,  principally  occasioned 
Iw  the  circumstances  which  have  been  mentioned, 
introduced  a  considerable  degree  of  confusion  into 
the  Roman  jurisprudence.    To  remedy  it,  Theo- 
dosius the  Second,  the  Emperor  of  the  East,  pub- 
lished,  in  438,  the  celebrated  code  of  law,  called 
from  him  the  Theodosian  Code,  which  forms  THE 
SEVENTH  PERIOD   OF  THE  HISTORY 
OF  THE    ROMAN    LAW.    It   comprises    all 
the  imperial  constitutions  from  312,  the  year  in 
which  Constantine  was  supposed  to  have  embrarcd 
Christianitv,  to  the   time   of  its   publication.    It   438 

has 


f 


THE  ROMAN  LAW. 


55 


k. 


;    dlVl-  Aftci- 
,      .       Christ 
(UOSIUS 

nerous 

of  the 

nee  of 

icers  of 

zaiitine 
edicts, 

then  le- 

hed  re- 
sons  of 

ill  more 

395 


:asioncd 
ntioned, 
iion  into 
,  Theo- 
ist,  pub- 
V,  called 
IS  THE 
STORY 
rises    all 
:  year  in 
mbrared 
ition.    It   438 
has 


has  not  rer^ched  us  entire:    an  excellent  edition  Aft- 
of  the  remains  of  it  was  published    by    James 
Gothofred,   at  Lyons,  in  1668,  in  six   volumes 
folio,   generally  published  in  four.    It  is  accom- 
panied  with  Prolegomena,  introductory  chapters 
a  perpetual  commentary  and  notes  ;  the  labour  ol 
thirty  years ;   and  no  one,  as  Dr.  Jortin  justly  re- 
marks, ever  thought  the  time  throAvn  away.  No 
work  perhaps  can  be  mentioned,  which  contanis 
more  information  on  the  antiquities  of  the  early 
ages  of  the  lower  empire.  In  addition  to  the  Theo- 
dosian  Code,  it  comprises  the  subsequent  novells 
of  the  Emperors  Valentinian,  MartiLo.  Majorian, 
Severus  and  Anthemius. 

Immediately  after  the  publication  of  the  Thco- 
dosian  Code  in  the  eastern  empire,  it  was  received 
into  the  empire  of  the  west,  by  an  edict  of  Va- 
lentinian the  Third.  In  the  east,  it  retained  its 
force  till  it  was  superseded  by  the  Justimaneau 

collection.  . 

It  retained,  but  indirectly,  its  authorit)'  longer 
in  the  west.   The  Barbarians,  who  invaded  the 
empire,  permitted  the  Romans  to  retain  the  use 
of  their  laws.    In  506  Alaric,  king  of  the  Visi-   506 
goths  in  Gaul,  ordered  a  legal  code  to  be  prepared, 
in  which  the  Roman  and  Gothic  lawG  and  usages 
should  be  formed  into  one  body  of  law,  for  the 
ge>  oral  use  of  all  his  subjects;  this  was  accordingly 
done  in  the  twentv-second  year  of  his  reign;  and 
from   Anianus,   his  Rcferendray,  or   Chancellor, 

bv 


!      ! 


il' 


Pl| 


rr 


3 

i 


U^i 


j6 


TIIK  ROMAN  LAW. 


by  whom  it  was  either  coiupikd  or  published,  it 
was  called  the  Brcviartum  Aniajd.  I».  is  an  extract 
from  the  Gregorian,  He ''MOgeniarijai^d  Theodosian 
Codes,  the  novells  of  the  subseqvu  m  Emperors, 
the  sentences  of  luuUu:,,  ihc  li.stit.  iu-  of  Gains, 
and  the  workr;.  •;!  Pa,)inian.  It  superseded  the  use 
oftl»e:  'brmerlavu  so  far,  that,  in  a  short  time,  they 
ceased  to  be  cited  in  the  courts,  or  by  writers  on 
subjects  of  Jaw;  uud  Anianus's  collection,  under 
the  name  oi'  the  Roman  oi'  Theodosian  law,  became 
the  only  leg;  1  workof  r.;ithori«y. 

To  this  period  also,  must  be  ascribed  the  cele- 
brated Collatio  Mosaicarum  et  Romanarum  Legum: 
the  object  of  it  is  to  shew  the  resemblance  be- 
tween the  Mosaicai  institutions  and  the  Roman 
law:  the  best  ( dition  of  it  is  F.  Desmare's  in 
1089. 


^  ■;«- 


V.  8. 
THE   EIGHTH,   AND  MOST    IMPOR- 
TANT, PERIOD,  of  the  history  of  the  Roman 
law,  comprises  the  time  in  which  the  body  of  law, 
compiled  by  the  direction  of  the  Emperor  Justinian, 

was  framed. 

1.  By  his  order,  Trebonian,  and  nine  other 
persons  of  distinction,  in  the  first  yeai'  of  his 
reign,  made  a  collection  of  the  most  useful  laws, 
in  the  Codex  Theodosianus,  the  two  earlier  codes 

of 


%^^.imX^^''^^^^^' 


■'  "         I'll  I 


THE  ROMAN  LAW 


57 


533 


m. 


;!,  « 


il:.  *  'i 


of  Gregorius  and  Hermogenes,  and  the  constitu-  ae^lJ* 
tions  of  some  succeeding  emperors.  It  was  imme- 
diately published  by  Justinian,  and  is  called  the 
Codex  Justineaneus  Prima  Pralectionis.         -  528 

2.  But  his  great  work  is  his  Digest  or  Pandects. 
By  his  direction,  Trebonian,  with  the  assistance 
of  sixteen  persons,  eminent  either  as  magistrates 
or  professors  of  law,  extracted  from  the  works  of 
the  former  civilians,  a  complete  system  of  law,  and 
digested  it  into  fifty  books. 

3.  Previously  to  its  publication,  an  elementary 
treatise,  comprising  the  general  principles  of  the 
system  of  jurisprudence,  contained  in  it,  was  pro-  |,    , 
mulgated,   by  the  Emperor's  direction,   in  four  |     | 
books.  From  its  contents,  it  was  caUed  The  Insti-  | 

tutes.  ' 

Thus  the  Digest,  and  Institutes  were  formed 
vato  a  body  of  law,  by  the  authority  of  the  Empe-  ^| 

ror.  He  addressed  them,  as  imperial  laws,  to  his 
tribunals  of  justice,  and  to  all  the  academies, 
where  the  science  of  jurisprudence  was  taught: 
they  were  to  supersede  all  other  law,  and  to  be  the 
only  legitimate  system  of  jurisprudence  throughout 

the  empire.  ' 

4.  In  the  following  year,  he  published  a  corrected 
edition  of  the  code,  under  the  title  Codex  Repe- 
tita  Pralectionis.  This  wholly  superseded  the 
first  code;  and,  except  so  far  as  it  has  been  pre- 
served in  the  latter,  it  is  wholly  lost.  -  534 

K  5.  The 


IIP 


56 


THK  ROMAN  IJVW. 


5.  The  edicts  which  he  promulgated,  after  the  a 
„cw  edition  of  the  Codex,  were  colleclcd  into  one 
volume,  in  the  last  year  of  his  reign,  and  published 
under  the  name  of  Novcllcr. 

6.  Most  of  the  Novell^  xvcre  written  in  the 
Greek  language.  In  the  last  year  of  Justinian's 
life,  a  Latin  translation  was  made  of  them;  and, 
by  the  fidelity  with  which  it  was  executed,  ob- 
tained  the  appellation  of  the  Volumen  Authenti- 

cum.  -         -         -         '         '    .     '         * 

Other   translations  of  the  Novella    have   ap- 
peared:  that,  published  at  Marburgh,  in  1717, 
by  John  Frederick  Hemburgh,  has  the  character 
o'' being  extremely  well  executed,  and  is  uccom- 
0  t  lied  with  a  valuable  commentary  and  notes. 
'    7.  In  most  editions  of  the  Corpus  Juris  Civilis, 
the  novells  are    followed  by  the  books  of  Fiefs, 
the  Constitutions  of  Conrade  the  Third,  and  the 
Emperor   Frederic,    under   the    title   of  Dectma 
Collatio,  and  some  other  articles.  But  they  make 
no  part  of  what  is  called  the  Corpus  Juris  Civilis: 
that  consists  solely  of  the  Pandects,  the  Institutes, 
the  Codex  Repetitse  Praelectionis  and  the  Novells. 
8.  On  the  genenii  merit  of  Justinian's  Collection, 
as  a  body  of  written  law,  able  judges  have  dif- 
fered: the  better  opinion  seems  to  be  tliat  it  is 
executed  with  great  ability,  but  that  it  is  open  to 
much  objection,  the  Responsa  Prudentum  some- 
times being  unfaithfully  given  in  it,  contradictory 
doctrines  having  found  their  way  into  it,  its  style 

being 


5Gb 


56H 


tcr  thcAfur 

dins'. 
^tO  one 

blislied 


5Gb 


in  the 
itinian's 
n;  and, 
ed,  ob- 
uthenti- 

ave  ap- 
n  1717, 
;haracter 

uccom- 
3tes. 

J  Civilis, 
yf  Fiefs, 

and  the 

Decima 
ley  make 
i  Civilis: 
nstitutes, 

Novells. 
Collection, 
have  dif- 
tliat  it  is 
is  open  to 
im  some- 
tradictory 
t,  its  style 
beinij 


56H 


THE  ROMAN  LAW. 


.SD 


being  often  too  flowery,  and  its  innovations  on  the 
old  law,  sometimes  being  injudicious.  Heincccius, 
whose  testimony,  in  this  case,  is  of  the  greatest 
weight,  at  first  judged  of  it  unfiivourabiy :  but 
afterwards  changed  his  opinion:  he  mentions, 
in  high  terms  of  commendation,  the  defence  of  it 
by  Huberus  and  the  Cocceii,  and  asserts  that  the 
cause  must  now  be  considered  as  decided  in  its 
favour.  Hist.  Juris  Romani,  Lib.  I.  $  eccc. 

The  very  attempt  to  lesst;n,  by  legislative  pro- 
visions,   the    bulk    of  the   national   law  of    any 
country,  where   arts,  arms   and  commerce   flou- 
rish,   must   appear    preposterous  to    a  practical 
lawyer,  who  feels  how  much  of  the  law  of  such 
a  country  is  composed  of  received  rules  and  re- 
ceived explanations.    What  could   an  act  of  the 
Imperial  Parliament  substitute  in  lieu  of  our  re- 
ceived  explanations  of  the  rule  in  Shellv's  Case? 
The  jurisprudence  of  a  nation  can  only  be.  essen- 
tially abridged  by    j  udge's  pronouncing  a  bf^ntencc 
which  settles  a  contested  point  of  law,  on  a  Ic^^al 
subject  of  extensi^'e  application,  as  Lord  Hard- 
wicke  did  by  his  decree  in  the  case  of  Willoughby 
versus  Willoughuy;  or  by  a  writer's  publishing  a 
work  on  one  or  more  imporUmt  branches  of  law, 
which,  like  the  Essay  on  Contingent  Remainders, 
has  the  unqualified  approbation  of  all  the  pro- 
fession.   «        ,        .  • 

One  circumstance,  however,  may  be  urged,  as 
an  unqueslonable  proof  of  toe  Justinia^c-u  Col- 
lection's 


ill 


it   . 


aWM* 


'II' 


60 


THK  ROMAN  LAW. 


lection's  possessing  a  very  high  degree  of  intrinsic 
merit.  Notwithstanding  the  different  forms  of  the 
governments  of  Europe,  and  the  great  variety  of 
their  political  and  judicial  systems,  the  civil  law 
has  obtained  either  a  general  or  partial  admittance 
into  the  jurisprudence  of  almost  all  of  them:  and, 
wh*!-*  't  has  been  least  favourably  received,  it  has 
been  pnnoui.  xd  n  collection  of  written  wisdom: 
this  couH  ijot  have  happened,  if  it  had  not  been 
deeply  and  extensively  grounded  on  principles  of 
justice  and  equity,  applicable  to  the  public  and 
private  concerns  of  mankind,  at  all  times,  and  in 
every  situation. 


V.  9. 

'.>.  THE  fhte  of  thi;,  ?ncrablc  body  of  law,  pro- 
mulgated with  so  much  pomp,  and  possessing  so 
much  intrinsic  merit,  is  singular,  and  fo  ms  THE 
NINTH  PERIOD  OF  THE  HISTORY  OF 
THE  ROMAN  LAW.  The  reign  of  the  third  sue 
cessor  of  Justinian,  was  the  last,  in  which  it  main- 
tained  its  authority  in  the  west  After  that  time,  all 
law  and  regular  government  were  rapidly  destroyed 
by  the  Barbarians  who  inva'ded  and  overturned  the 
Roman  empire.  The  exarchate  of  Ravenna,  the 
last  of  their  Italian  victories,  was  conquered  by 
them   in  753;  and  that  year  is  assigned  as  the 

wra 


m 


trinsic 
of  the 
riety  of 
vil  law 
ittance 
and, 
1,  it  has 
wisdom : 
ot  been 
:iples  of 
}Hc  and 
,  and  in 


law,  pro- 
:8sing  so 
lis  THE 
)RY  OF 
hird  suc- 
i  it  main- 
t  time,  all 
lestroyed 
irned  the 
;nna,  the 
uered  by 
d  as  the 
wra 


■  I 


THE  ROMAN  LAW.  61 

ara  of  the  final  extinction  of    the   Roman   law^h'^^^ 
in  Italy 753 

It  lingered  longer  in  the  east:  in  strictness  even, 
it  cannot  be  said  to  have  wholly  lost  its  authority, 
in  that  part  of  the  empire,  till  the  taking  of  Constan- 
tinopi**,  by  Mahomet  the  Second.  In  the  lifetime 
of  Justinian,  the  Pandects  were  translated  into 
Greek  by  Thaleleus;  a  translation  of  the  Code 
was  made,  perhaps  by  the  same  hand,  and  the 
Institutes  were  translated  by  Theophilus. 

The  successors  of  Justinian  published  diflfercnt 
laws,  some  of  which  have  reached  us.  In  the 
reign  of  Basilius  the  Macedonian,  and  his  s<9ns 
Leo  the  philosopher,  and  "^^onstantine  Porphyro- 
geneta,  an  epitome,  in  sixty  books,  of  Justinian's 
Code,  and  of  the  constitutions  of  succeeding  em- 
perors, was  framed,  under  the  title  of  Basilica.  906 
Forty-one  of  the  sixty  books  were  splendidly  pub- 
lished by  Fabrotti,  at  Paris,  in  1647,  in  seven 
tomes  in  folio;  four  more  have  been  published  in 
Meerman's  Thesaurus. 

That  the  Basilica  superseded,  in  the  eastern 
empire,  the  immediate  authority  of  the  Justi- 
nianean  collection,  is  true ;  but  that  the  Justini- 
anean  collecti<m  formed  a  considerable  part,  and 
was  in  fact  the  ground-work  of  the  Basilica,  is 
unquestionable.  Thus,  through  the  medium  of 
the  Basilica,  the  code  of  Justinian,  in  a  great 
degree,  directed  or  influenced  the  jurisprudence 

of 


11 


•^fey. 


M 


6^ 


rilK  UOMAN  LAW 


Aftci 


of  the  ctistcrn  empire,  to  the  latest  moment  of  its  ti.rT,i 
existence*  ....         145. 


•  I  ..   .  V.  10.  .i 

THE  text  of  the  Pandects  being  almost  wholly 
lost,  accident  led,  sometime  about  the  year  1137, 
to  the  discovery  of  a  complete  copy  of  them,  at 
Amalphi,  i  town  in  Italy,  near  Salerno.  This  forms 
the  TKNTH  PERIOD  OF  THE  HISTORY 
OF  THE  ROMAN  LAW.  From  Amalphi  the 
copy  found  its  way  to  Pisa,  and  Pisa  having  sub- 
mitted to  the  Florentines,  in  1406,  the  copy  was 
removed  in  great  triumph,  to  Florence.  By  the 
direction  of  the  magistrates  of  the  town,  it  was 
immediately  bound,  in  a  superb  manner,  and  de- 
posited in  a  costly  chest.  This  copy  of  it  is  gene- 
rally called  the  Florentine  Pandects.  Formerly  they 
were  shewn  only  by  torch  light,  in  the  presence 
of  two  magistrates,  and  two  Cistercian  monks,  with 
their  heads  uncovered.  They  have  been  succes- 
sively collated  by  Politian;  Bolognini,  and  Anto- 
nius  A\igustinus;  an  exact  copy  of  them  was  pub- 
lished, in  1553,  by  Franciscus  Taurellus;  for  its 
accuracy  and  beauty,  this  edition  ranks  high  among 
the  ornaments  of  the  press :  it  should  be  accom- 
pimied,  with  the  treatise  of  Antonius  Augustinus, 
on  the  proper  names  in  the  Pandects,  published  by 
him  at  Tarragona,  in  1579.    About  the  year  1710, 


140(3 


•  Sec  Appendix,  Note  IV. 


Henr\ 


»»««»|. i uyilil"  ii>ii««*l<W  ![ilJ»W|»»-'!>*»" 


i«imj" 


Tin:  ROMAN  LAW. 


63 


nt  of  Its  cl.riHl 


t  wholly 
ar  1137, 
them,  at 
us  forms 
sTORY 
iphi  the 
ing  sub- 
;opy  was 

By  the 
1,  it  was 

and  de- 
ls gene- 
crly  they 
presence 
[iks,  with 
1  succes- 
id  Anto- 
ivas  pub- 
>;  for  its 
h  among 
!  accom- 
gustimis, 
lished  by 
;ar  1710, 

Henr\ 


- '  j1'V.'.i"tiyj' 


Henry  Brcnchman,  a  Dutcliman,    was  permitted, 
at  the  earnest  solicitation  of  our  Oeorge  the  First, 
to  collate  the  manuscript.    He  employed  ten  years 
upon  it,  and  in  the  investigation  of  various  topics 
of  literature  connected  with  the  Justiniancan  C(k1c. 
His   elegant  and  curious    Historia   Pandoctarum, 
published  at  Utrecht,  in  1712,  gives  an  interesting 
account  of  his  labours;  and  shews,  like  the  labours 
of  Wetstein  and  Mill,  that  great  fire  of  imagina- 
tion, exquisite  taste,  minute  and  patient  investiga- 
tion, and  the  soundest  judgment,  may  be  found  in 
the  same  mind. — Some  have  supposed  that  the 
Florentine  manuscript,    is  the  autograph  of  the 
Pandects;  for  this  opinion  there  is  no  real  ground 
or  authority ;  but  Brenchman  refers  it  to  the  sixth 
century,  a  period  not  very  remote  from  the  a^ra  of 
Justinian.  Brcnchman's  work  forms  a  small  part  of 
an  original  design,  and  is  so  ably  executed  that  all 
must  lament  his  having  left  any  part  of  lus  design 
unfinished. 

Three  editions  of  the  Pandects  are  particularly 
distinguished:  the  Norican  edition  published  by 
Holoander,  at  Neuremburgh,  in  1529,  in  thice 
volumes,  quarto;  the  Florentine,  published  by 
Taurellus,  at  Florence,  in  1553,  in  two  volumes 
folio,  often  bound  in  three;  and  the  Vulgate, 
under  which  name  every  edition  is  comprised, 
which  is  not  taken  from  the  Norican  or  Floren- 
tine edition.     The  best  editions  for  general  use ' 

appear 


m\ 


im 


fii 


J0" 


i*!*'^-' 


64 


THE  ROMAN  LAW. 


appear  to  be  Pothicr's  Pandectse  Justinianea:,  pub- 
lished at  Lyons  in  1782,  in  three  volumes  folio; 
and  that  of  Dionysius  Gothofred,  published  by 
Simon  Van  Leeuwen  at  Leyden  in  1663,  in  one 
large  volume,  generally  bound  in  two :  It  contains 
the  Institutes,  the  Digest,  the  Code,  the  Fasti 
Consulares,  Freher's  Chronologia  Imperii  UtriUs- 
que,  Gothofred's  Epitome  of  the  Novells  of  Justi- 
nian, various  other  edicts  and  novell  constitutions, 
Frederici  II.  Imp.  Extravagantes,  Liber  de  Pace 
Constantise,  Gotihofred's  Epitome  of  the  books  of 
the  Fiefs,  an  extensive  synopsis  of  Civil  Law,  tlie 
fragments  of  the  Twelve  Tables,  the  Tituli  of 
Ulpian,  and  the  opinions  of  Paulus,  with  notes, 
and  copious  indexes  to  the  whole.* 

^.^..-       .      .  THESE 


•  This  article  is  extracted  from  Pom/ioniua'a  short  treatise 
de  Origine  Juris  et  omnium  tnagistratuum  et  auccessione 
firudentum,  Big.  TUt.  2.;  the  Preface  to  the  Institutes ;  the 
firsty  second,  and  third  Prefaces  to  the  Pandects ;  the  first 
and  second  Pr^aces  to  the  Codes  Heineceius's  Historia  Juris 
Civilis.  Romani  ac  Germanici,  Lug.  Bat.  1740,  8vo;  the 
Antiquitatum  Romanarum  Syntagma,  of  the  same  author, 
Strasburgh  1724,  Svo.— The  writings  of  Heineccius  are  a 
striking  proof  of  the  truth  of  Mr.  Gibbon's  observation, 
vol.  4.  395,  note  160,  '<  that  the  universities  of  IloUand 
«  and  Brandenburgh,  in  the  beginning  of  the  last  centurj, 
"  appear  to  have  studied  the  civil  law  on  the  most  just  and 
"  liberal  principles:"— /Ac  vtorks  <f  Gravina,  on  the  Civil 
Law,  Leifisix  1717,  in  three  volumes  ito,  particularly  his 
Originea  Juris    CiviHa;   Gfavina'a    account  of  the  Leges 


i-  .^-ii^ii  i>  iiilW*i>'tiifW^»^,,^»- 


;8e,  pub- 
is  folio; 
shed  by 
,  in  one 
contains 
he  Fasti 
i  UtriUs- 
of  Justi- 
titutions, 
de  Pace 
books  of 
Law,  the 
Tituli  of 
th  notes, 

THESE 

.ort  treatise 
aucceasione 
ititutea;  the 
I  i  the  Jirat 
atoria  Juria 
,  Sro ;  the 
me  author^ 
ccius  arc  a 
observation, 
of  IloUand 
ist  century, 
ost  just  and 
m  the  Civil 
ticularly  hi» 
the  Leges 
apd 


■M 


THE  ROMAN  LAW. 


VI. 


65 


THESE  lead  to  an  inquiry  respecting  THE 
PRINCIPAL  SCHOOLS  IN  WHICH  THE 
CIVIL  LAW  HAS  BEEN  TAUGHT  since  its 
revival  in  Europe. 

In  the  early  days  of  tlie  republic,  it  was  usual 
for  such  as  desired  to  gain  a  knowledge  of  the 
laws  of  tneir  countr}',  to  attend  on  those,  who 

were 

and  Senatua  Conaulta  is  particularly  interesting:  Brunguellua'a 
Historia  Juria  Romano-Germanici,  Ams.  1730,  81^0,  per- 
haps the  completest  historical  account  extant  of  the  civil 
law;  Struviua'a  Hiatoria  Juria  Romani,  Jevx^  1718,  4fo; 
Pothier'a  Prolegomena  to  his  Fandecta  Juatinianea,  Lyons, 
3  vola./ol.;  Terraaaon's  Hiatoire  de  la  Juria/irudence  Romaine^ 
Paria,  1750,  said  by  Mr.  Gibbon,  4th  vol.  note  9,  to  be 
«  a  work  of  more  promise  than  performance  ;"  Thomaaiua's 
Delineatio  Hiatorite  Juria  Romani  n  Germanici,  Er/ordia, 
1750,"]  8vo;  and  hia  JVavorum  Juriafirudentia  Romana  Li- 
bri  duOf  Halte  Magdeburgicx,  1707,  8t>o;— .they  contain  a 
severe  attack  on  the  Justinianean  collection,  the  emperor, 
and  all  other  persons  concerned  in  it :  Monteaguieu'a  Eafirit 
def>  Loix,  a  work  entitled  to  all  the  pi-aise  it  has  received ; 
no  one,  who  has  not  travelled  through  the  Corpus  Juris 
and  the  Capitularies,  can  form  an  idea  of  the  comprehensive 
brevity  and  energy  with  which  it  is  written.  Dr.  Bever'a 
History  0/ the  Legal  Polity  of  the  Roman  State,  Lond,  1781, 
\to;Dr.  Tayior'a  Elementa  of  the  Civil  Law,  Camb.  1755, 
Ato,  a  work,  if  we  acquiesce  Li  Mr.  Gibbon's  opinion  of 
it,  4th  vol.  note  132,  «  of  amusing,  though  various  reading; 

L  « but 


..*«ii>i*  ill 


t: 


'V  , 


-f  \i 


■ifmm'M.;'^m&^:-: 


^j^fe* 


Iteii' 


)m 


QQ  THE  ROMAN  LAW. 

were  consulted  on  le^l  subjects,  at  the  hours,  iu 
which   these    consultations  generally  took  place. 
Tiberius  Coruncanius  is  said,  by  Cicero,  to  have 
been  the  first  among  the  Romans,  who  professed 
to   give    regular  instructions   on  legal   subjects. 
Afterwards, 'public  schools  of  jurisprudence  were 
established;    the  most  celebrated    were  those  at 
Rome  and  Constantinople;   Justinian  founded    u 
third  at  Berytus,  and  used  all  means  in  his  power, 
to  promote   its   success:  he  gave  the  professors 
large  salaries,  and  advanced  some  of  them  to  offices 
of  high  distinction  in  the  state;— as  the  authority 
of  his  law  decreased,  they  fell  into  decay. 

With  the  discovery  of  the  Pandects  at  Amalphi, 
the  study  of  the  civil  law  revived:  it  was  intro- 
duced into  several  universities,  and  exercises  were 
performed,  lectures  read,  and  degrees  conferred  in 

« but  which  cannot  be  praised  for  philosophical  precision;" 
The  four  Books  of  Justinian,  translated  by  the  late  Dr.  Harris, 
with  notes  and  a  preface}   the  translation  is  excellent,  and 
it  is  much  to  be  lamented,  tliat  the  preface  is  not  longer, 
.  and  the  notes  more   copious;  Ferriere's  Histoire  du  Droit 
Romaine,  Paris,    1783,    ivo;     Beaufort's     Refmblique    Ro- 
maine,   Paris,    1767,   6  vols.   8vo ;   an   excellent    constitu- 
tional history  of  the  Roman  Government:    The  Uth  Cha/iter 
qf  the  Ml  Volume  of  Mr.  Gibbon's  History ;  M.  Bouchaud's 
Recherches  Historiques  sur  lea  Edits  de/>  Magistrals  Romaina, 
Quatrieme  Memoire,  Mem.  dc  I'Jcadcmie,  -list  Vol.  Jt.  \.  and 
Mr.  Schomberg'a  Elements  qf  Roman  latv,  London,  1786,  Svo. 

this, 


THE  ROMAN  LAW. 


67 


lours,  m 
k  place. 
,  to  have 
professed 
subjects, 
nee  were 
those  at 
lunded    u 
lis  power, 
professors 
I  to  offices 
authority 

Amalphi, 
vas  intro- 
^iises  were 
nferred  in 

[  precision;" 
•Dr.  Harris, 
xellent,  and 
not  longer, 
're  du  Droit 
ublique  Ra- 
nt Gonstitu- 
t4?A  Chafiter 
r,  Bouchaud'i 
•ats  Romaina, 
''ol.  ft.  \.  and 
n,  1786,  8vo. 

this, 


this,  as  in  other  branches  of  science,  and  several 
nations  of  the  continent,  adopted  it,  as  the  basis 
of  their  several  constitutions.  From  this  time, 
there  has  been  a  regular  succession  of  civil  law- 
yers, distinguished  by  some  circumstunce  or  other 
into  different  classes,  or  as  it  is  usually  expressed, 
into  different  schools.  ■         '        ' 

I.  The  first,  is  the  school  of  Irnerius,  a 
learned  German,  who  had  acquired  his  know- 
ledge of  the  civil  law,  at  Constantinople.  He 
taught  it  at  Bologna,  with  great  applause:  the 
legal  schism  which  had  divided  the  Sabinians  and 
Proculeians,  was  revived,  in  some  degree,  among 
liis  scholars:  one  of  them,  was  the  celebrated 
Azo,  a  Proculeian,  whose  writings,  Montesquieu 
is  said  to  have  preferred  to  all  other  on  the  sub- 
ject of  civil  law.  A  more  important  subject, 
the  contest  between  the  emperors  and  popes, 
produced  a  more  serious  warfare  among  the 
disciples  of  Imerius.  The  German  emperors, 
who  pretended  to  succeed  to  the  empire  of  the 
Caesars,  claimed  the  same  eTr-cnt  of  empire  in  the 
west,  and  with  the  same  priv  .^ges,  as  it  had  been 
held  by  the  Caesars;  to  this  claim,  the  spirit  and 
language  of  the  civil  law  being  highly  favourable, 
the  emperors  encoump-ed  the  civilians;  and,  in 
return  for  it,  had  their  pens  at  command.  The 
popes  were  supported  by  the  canonists,  and  the 
canonists  found,  in  the  decree  of  Gratian,  as  much 
to   favour  the   pretensions  of  the    popes,  as  the 

civilians 


I: 


I'i 


km 


58  THE  ROMAN  LAW. 

civilians  found,  in  the  law  of  Justinian,  to  favour 
the  pretensions  of  .he  emperors.  Thus,  generally 
speaking,  the  civilians  were  Ghibelins,  the  name 
given  to  the  partisans  of  the  emperors,  and  the 
canonists  were  Guelphs,  the  name  given  to  the 
partisans  of  the  popes.  But  this  distinction  did 
not  prevail  so  far,  as  to  prevent  many  canonists 
from  being  Ghibelins,  or  many  civilians  from  being 
Guelphs;  those  among  the  civilians,  who  sided  with 
the  canonists  in  these  disputes,  were  called,  from 
the  decree  of  Gratian,  Decretistro,  in  opposition  to 
tl ;  rest  of  the  body,  who  assumed  the  appellation 
of  Legistffi,  from  their  adherence  to  the  supposed 
Ghibelin  doctrines  of  the  civil  law.  ',  •!' 

2.  J  new  school  began  with  Accursius: — his 
Gloss  is  a  perpetual  commentary  on  the  text  of 
Justinian :  it  was  once  considered  as  legal  authority, 
and  was  therefore  usually  published  .vith  the  text: 
it  is  even  x\q\v  respected  as  ^  useful  commentary. 
Accursius  had  many  disciples,  whose  glosses  had 
great  celebrity  in  their  day,  but  are  now  wholly  for- 
gotten. 

3.  Bartolus,  andBaldus  his  disciple  and  rival,  gave 
rise  to  a  new  school,  famous  for  copious  commenta- 
ries on  Justinian's  text;  for  the  idle  subtleties  with 
which  they  abound,  and  their  barbarous  style. 

4.  Andrew  Alciat  was  the  first  who  united  the 
btudy  of  polite  learning  and  antiquity,  with  the 

Study 


.4f(^^iV^;.Ji.,-_  ,_ 


THE  ROMAN  LAW. 


69 


0  favour 
jenerally 
le  name 
and  the 

1  to  the 
tion  did 
canonists 
im  being 
ded  with 
ed,  from 
jsition  to 
ipellation 
supposed 

ius: — his 
e  text  of 
LUthority, 
the  text: 
imentary. 
osses  had 
holly  for- 

hal,gave 
)mmenta- 
eties  with 
yle. 

mited  the 

with  the 

Study 


study  of  the  civil  law:  he  Avas  the  founder  of  a 
new  school  which  is  called  the  Cujacian  from 
Cujas,  the  glory  of  civilians.  Of  him  it  may  be 
said  trulv,  that  he  found  the  civil  law  of  wood,  and 
left  it  of  marble.  That  school  has  subsisted  to  the 
present  time ;  it  has  never  been  without  writers  of 
the  greatest  taste,  judgment  and  erudition;  the 
names  of  Cujacius,  Augustinus,  the  Gothofredi, 
Heineccius,  Voetius,  Gravina,  and  Pothier,  are  as 
dear  to  the  scholar,  as  they  are  to  the  lawyer.  An 
Englishman,  however,  must  reflect  with  pleasure, 
that  his  countryman,  Mr.  Justice  Blackstone's 
Commentaries  on  the  Laws  of  England,  will  not 
suffer  in  a  comparison  with  any  foreign  work  of  ju- 
risprudence;— perhaps  it  will  be  difficult  to  name 
one  of  the  same  nature,  which  will  bear  a  compari- 
son with  it.* 

VII. 

IT  remains  to  give  some  account  of  THE  IN- 

flup:nce  of  the  civil  law  on  the 

JURISPRUDENCE    OF     THE     MODERN 
STATES  OF  EUROPE. 

On  the  degree  of  its  influence  on  the  law  of 
Germany,  the  German  lawyers  are  not  agreed: 
but  it   is  a  mere  dispute  of  words;  all   of  them 

•  This  article  is  chiefly  taken  from  the   .'.ted  works  of 
Crovina  and  Brunqiiellns. 

allow 


M^ 


X 


k.L 


■  *  'J 


70 


THE  ROMAN  LAW. 


allo\v  that  more  causes  are  decided  in  their 
courts,  by  the  rules  of  the  civil  law,  than  by  the 
laws  of  Germany;  and  thft,  where  the  laws  of 
Germany  do  not  interferf  ac  iject  in  dispute 
must  be  tried  by  the  cl  . ;  after  these  con- 

cessions, it  is  not  material  j  mquire,  whether,  to 
use  the  language  of  the  German  lawyers,  the 
civil  law  be  the  dominant  law  of  Germany,  or  sub- 
sidiary to  it. 

The  sanu-  may  be  said  of  its  influence  in  Bohe- 
mia, Hungary,  Poland  and  Scotland. 

At  Rome,  and  in  ;^il  the  territories  of  the  pope, 
it  is  received  without  limitation;  in  most  other 
parts  of  Italy,  including  Naples  and  the  two  Sici- 
lies, it  has  iiearly  the  same  influence ;  except  where 
the  feudal  policy  intervenes. 

Its  influence  in  Spain  and  Portugal  is  more  qua- 
lified ;  but  it  appears  to  be  admitted,  that  where  the 
law  of  the  country  does  not  provide  the  contrary, 
the  civil  law  shall  decide :  and  it  is  the  settled  prac- 
tice, that  no  person  shall  be  appointed  a  judge  or 
received  an  advocate  in  any  of  the  courts  of  law, 
who  has  not  been  a  student  in  some  academy  of 
civil  or  canon  law  for  ten  years. 

The  provinces  of  France,  which  lie  nearest  to 
Italy,  were  the  first  conquered  by  the  Romans, 
and  the  last  conquered  by  the  Franks.  At  the 
time  of  the  conquest  of  them  by  the  Franks, 
tlicy  were  wholly  governed  by  the  Roman  law: 

thev 


^^'-T^^^A^;- 


^i^vsfe*:; 


'i<'^ii^'i 


THE  ROMAN  LAW. 


71 


tlicy  are  the  provinces  of  Guyenne,    Provence, 
Dauphine,    and  speaking  generally,  all  the  pro- 
vinces, under  the  jurisdiction  of  Toulouse,  Bour- 
deaux,  Grenoble,  Am,  and  Pau;  the  Lyonnois, 
Forez,  Beaujolois,   and  a  great  part  of  Auvergne. 
Their    Frankish  conquerors    permitted   them  to 
retain  the  Roman  law;  where  it  has  not  been  al- 
tered, they  are  still  governed  by  it:  and,  from  this 
circumstance,  they  are  known  under  the  general 
name  of  the  Pays  du  Droit  ecrit.    The  remaining 
part  of  France  is  governed  by  the  different  laws 
and  customs  of  the  provinces  of  which  it  is  com- 
posed, and  from  this  circumstance,  is  called.  Pays 
coutumier.* 

The  Venetians  have  always  disclaimed  the  autho- 
rity of  the  civil  law. 

It  was  introduced  into  PLngland  by  Theobald,  a 
Norman  Abbot,  who  was  elected  to  the  see  of 
Canterbury.  He  placed  Roger,  surnamed  Vaca- 
rius,  in  the  university  of  Oxford:  students  flocked 
to  him  in  such  abundance,  as  to  excite  the 
jealousy  of  government,  and  the  study  of  the 
civil  law  was  prohibited  by  King  Stephen.  It 
continued,  however,  to  be  encouraged  by  the 
clergy,  and  became  so  favourite  a  pursuit,  that 
almost  all,  who  aspired  to  the  high  offices  of 
church  or  state,  thought  it  necessary  to  go  through 
a    regular  course  of  civil  law,  to  qualify   them- 


Sec  Appendix,  Note  IV 


m 


selves 


72 


THE  ROMAN  LAW 


;>J| 


'}  ^ 
VM 


selves  lor  them :  it  became  a  matter  of  reproach  to 
the  clergy,  that  they  quitted  the  canon  for  the  civil 
law;  and  pope  Innocent  prohibited  the  very  reading 
of  it  by  them.  Notwithstanding  this  opposition,  the 
study  of  the  civil  law  has  been  encouraged  in  this 
country :  [c]  in  each  of  our  universities  there  is  a  pro- 
fessor of  civil  law,  and,  by  general  custom  and  im- 
memorial usage,  some  of  the  institutions  of  the  ci- 
vil law  have  been  received  into  our  national  law.  In 
the  spiritual  courts,  in  the  courts  of  both  the  univer- 
sities, the  military  courts,  and  courts  of  admiralty, 
the  rules  of  civil  law,  and  its  form  of  legal  proceed- 
ing greatly  prevail.  But  the  courts  of  common  law 
have  a  superintendency  OAcr  these  courts,  and  from 
all  of  them,  an  appeal  lies  to  the  King  in  the  last  re- 
sort. "  From  these  strong  marks  and  ensigns  of 
"  superintendency  it  appears  beyond  doubt,"  sayc, 
Mr.  Justice  Blackstonc,  "  that  the  civil  and  canon 
"  laws,  though  admitted  in  some  cases  by  custom, 
"  and  in  some  courts,  are  only  subordinate  and  le- 
''ges  sub  graviori  lege.''  Theshort  but  very  learned 
treatise  of  Arthur  Duck,  de  Usu  et  Auctoritate 
juris  civilis  in  Dominiis  principum  christianorum, 
conveys,  in  elegant  language  and  a  pleasing  manner, 
complete  information  on  the  nature  and  extenl  of 
the  influence  of  the  civil  law,  on  the  jurisprudence 
of  the  modern  states  of  Europe. 

[r]  It  is  to  be  it  fretted  that  the  study  of  the  civil  law  is 
not  at  M  cncovira<<cfi  in  the  United  Stales,  -vTlierc  there  arc 

but 


^^ 


■.■-•■t'li*^-- 


"^tr 


•oach  to 
he  civil 
reading 
tion,  the 
i  in  this 
isapro- 
and  im- 
f  the  ci- 
l  law.  In 
i  univer- 
Imivalty, 
proceed- 
imon  law 
and  from 
:  last  re- 
isigns  of 
bt,"  sayr, 
id  canon 
r  custom, 
e  and  ie- 
:y  learned 
Lictoritate 
ianorum, 
r  manner, 
extent  of 
iprudence 


civil  law  is 

c  there  arc 

but 


THE  ROMAN  LAW.  72  a 

>)Ut  few  lawyers  who  have  made  it  in  any  deforce  the  object  of 
study.  Perhaps  it  is  to  h<  attributed  to  tiie  waiit  of  ^ood  ele- 
mcr.u"v  books,  tiierc  being  l)iit  few  extant  in  the  Knt^lish 
langiiuj^e,  and  those  mostly  out  of  print.  I'dward  Livin^;;ston, 
Ms(|.  of  New  Orleans,  has  uiidertaiien,  we  heai',  to  publish  u 
translation  of  the  whole  body  of  the  civil  hiw;  but  though  we 
do  not  in  the  least  dowbt  that  gentleman's  abilities,  we  ron- 
<  eive  that  so  iniuK-nsf  and  laborious  a  work  is  too  nuich  for 
any  one  man,  hoM'cve  •  leurned  and  Industrious,  who  is  not 
entirely  free  from  professional  avocations ;  and  we  should 
have  been  more  p '  iscd  to  hear  that  he  had  devoted  his  lei- 
sme  to  some  less  extensive  work  on  the  same  subject.  Sucb 
would  be,  for  instance,  an  edition  of  the  English  translation 
of  Domat  on  the  i'.Wil  Law.  It  is  undoid)tcdly  the  most  ex- 
cellent elen\cntary  book  extant  on  the  Roman  system  of  ju- 
risprudence ;  but  a  great  part  of  it  relates  merely  to  the  lo- 
cal laws  of  Erancc,  and  would  be  useless  in  this  country.  If 
that  part  were  extracted  from  ihe  work,  and  the  remainder 
pvdilished  in  two  haa  Isome  octavo  volumes,  it  would  proba- 
bly meet  with  a  ready  -ale  in  the  United  .States,  and  greatly 
promote  the  study  and  knowledge  of  the  Roman  law. 

The  body  of  the  civil  law  h.is  been  entirely  translated  into 
the  French  language;  I  -'t  by  diRcrem  authors.  The  InstitiUes 
by  Ftrrierc,  the  Digest    by  Ilulot,  the  Code  and  Novells  by 

.  The  collec    '>n  Is  to  be  had  of  Tissot,  Rue  llonord 

Chevalier,  I<'auxbourg  Ht.  Germain,  and  of  Le  A'orfnanc/,  book- 
sellers at  Paris.  There  is  a  translation  into  English  of  the 
Institutes  only,  by  Harrin.  A  curious  anecdote  concern- 
ing Huht's  translation  of  the  Digests,  is  related  by  Mons. 
(^AUXWi,  liibliothequc  dc  Droit,  :^.xmi  30.  Ilulot  issued  propo- 

M  sals 


SV    , 


72  l  THE  UOMAN  LAW. 

sals  ill  1764,  to  publish  a  completi'  iianslution  of  ihc  Cor/ju* 
Jurhy  but  the  luwy(  ^  that  day  raised  a  vurjcty  of  objec- 
tions against  it :  they  saul  that  it  was  impossible  to  render  accu- 
rately into  French  the  text  of  the  Roman  law;  and  besides  thut, 
that  text,  by  becoming  too  common,  and  being  put  within  the 
reach  of  every  practitionei-,  would  greatly  rrniltiply  lawsuits. 
Hulot  saw  the  storm  which  was  gathering  against  hun,  and 
prudently  withdrew  his  proposals.  It  was  not  until  the  period 
of  the  French  revolution,  that  his  translation  of  1 1"  Digests 
was  published. 

It  docs  not  appear  that  any  part  of  the  Cor/ius,  except 
the  Institutes,  has  been  hitherto  translated  into  any  other 
living  language. 


li 


ll;  iJ)  1» 

1:1 


P' 


fe 


THE  FEUDAL  LAW 


An   attempt 
sheets    to    gi\ 
g'uial   tcrriioiics 
FEUDAL  LAW 
first  progress  and  chk  t 


made  in  the  following 
ount,  L  Of  the  ori- 
tions  by   whom  THE 

.tublished;  IL  Of  their 
Attkments  in  the  Roman 


territories;  and  IIL  Of  the  principal  written  docu- 
ments of  the  Feudal  Jurisprudence  of  foreign  coun- 
tries.  It  is  principally  taken  from  a  note  .  of  the 
Editor,  in  that  part  of  the  14th  edition  of  Coke 
upon  Littleton,  which  was  executed  by  him. — 
That  note  contains  also  some  observations  on  the 
peculiar  marks  and  qualities  of  the  feudal  law;  some 
account  of  the  principal  events  in  the  early  his- 
tory  of  the  feuds  of  foreign  countries;  and  of 
the  revolutions  of  the  feud  in  England.  But,  as 
the  researches  which  gave  rise  to  that  note 
were  chiefly  made  with  a  view  to  the  law  of  real 
property,  the  observations  in  it  are  principally 
directed,  through  every  branch  of  the  inquiry, 
to  the  influence  of  the  feud  on  that  species  of 
property,  particularly  where  the  writer  treats  of 
the  feudal  jurisprudence  of  Engknd.  Under  that 
head  some  general  observations  are  oiFered,   on 

the 


f 


i' 


m 


m 


74,  THK  IIX'DAI,  I.AU  . 

the    lime    when  liucls  may  In-  supposed  to  have 
Ixiii  first  cstabli^lud   in    Kii^iand;   on   ihc    fruits 
aiul  iniicUnts  of  the    feudal  tenure;   and  on  the 
feudal  polity  of  this  country,  with  respect  to  the 
inlieiilance   and  alienation    of    huul:    under    this 
head   an  attempt    is   made  to  state  the  principal 
points    of    dilli  rcnee    hetween    the    Ronum   and 
feudal    jurisprudence    in  the    •  ticks  of  heirship, 
the  order  of  succession,  and  the  nature  of  feudiJ 
estate:    an    attempt   is    then    made    to    shew  the 
means    hy  which   some  of  the  general  restraints 
upon  the  alienation   of  real  property,  introduced 
by  the    feud,   luive  been  removed;  some  account 
is    then    given    of   entails,    and    of    the     means 
l)y   which  the   restraints  created  by   entails  were 
eluded  or  remo\ed.   Havinj^  thus  treated  of  that 
species  of  alienation,  which,  being  the  act  of  the 
party    himself,    is   termed    voluntary    alienation, 
notice    is    taken    of    that   species   of    alienation, 
which,  being  forced  on  the  party,  is  termed  in- 
voluntarj'.  Under  that  head  are  briefly  considered 
the  attachment  of  lands  ibr  debt;  fust,  in  regard 
to  its  effect  upon  them,   while  they  eontiiuic  in 
the  possession  of  the  party  himself;  then,  in  re- 
spect to  its  effect  upon  them,  when  in  possession 
of  the  heir  or  de\isee;  and  afterwards,  in  respect 
to  the  prerogative  remedies    for  the  recovery  of 
Crown  debts.  Some  observations  are  then  offered 
on  testamentary  alienation ;  and  an  account  of  some 

of 


■*r-*-" 


•>f'.'.V- 


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THE  FEUDAL  LAW. 


75 


of  the  principal  circumstances  in  the  history  of  the 
decline  and  fall  of  the  feud  in  England. 

I. 

In  respect  to  the  ORIGINAL  TERRITO. 
F.IES  of  the  nations  who  introduced  the  feudal 
law; — they  may  be  considered  under  the  names  of 
Scythians,  Sarmatians,  Scandinavians,  Germans, 
Huns  and  Sclavonians,  which  they  acquired  as 
they  extended  their  conquests.  Till  lately,  the  in- 
habitants of  the  shores  of  the  Baltic  were  consi- 
deied  to  be  their  parent  stock:  subsequent  re- 
searches seem  to  have  traced  it  to  the  spot  where 
the  common  stock  of  all  nations  is  found,— the 
Plain  of  Sennaar. 

I.  1.  For  the  eiu-ly  state  of  the  Northern  na- 
tions we  must  look  to  Herodotus.  Of  the  north- 
western parts  of  Europe,  he  seems  to  have  had 
little  knowledge:  the  word  Germjuiy  does  not 
occur  in  his  writings;  Scythia  is  a  general  name 
given  by  him  to  the  north-eastern  parts  of  Europe, 
and  to  all  he  knew  of  the  north-western  parts  of 
Asia,  till  he  reached  the  Issedones,  a  nation  who, 
by  Major  Rennel's  account,  occupied  the  present 
seat  of  the  Oigur  or  Eluth  Tartars. 

The  European  part  of  this  extensive  territory 
lies  on  the  western,  its  Asiatic  part  on  the  eastern, 
side  of  the  Volga.  On  the  south,  the  European 
Scythia  extended  to  the  Carpathian  mountains 
and  the  mouths  of  the  Danube:  and  the  Asiatic 

Scvthia 


<ii.»i-' 


76  fHE  FEUDAL  LAW 

Scythia  to  the  Caspian  and  the  country  on  i£s  east. 
As  it  was  intersected  by  the  great  chain  of  moun- 
tains called  the  Imaus  or  Caff,  the  Asiatic  Scythia 
was  distinguished  into  the  Scythia  within,  and  the 
Scythia  without  the  Imaus. 

I.  2.  Under  the  general  denomination  of  Celts, 
Herodotus  included  all  the  parts  of  Europe  which 
were  not  occupied  by  the  Scythians. 

I.  3.  In  the  course  of  time,  the  name  of  Scythia 
was  applied  to  the  eastern  part  only  of  the  original 
Scythia;  but  the  division  of  it  into  the  part  within, 
and  the  part  without  the  Imaus  was  preserved; 
the  western  Scythia,  or  the  part  of  the  original 
Scythia,  which  lies  on  the  western  side  of  the 
Volga,  then  received  the  name  of  Sarmatia,  and 
Avas  divided  into  the  European  and  Asiatic  Sar- 
matia?  the  former  contained  the  country  between 
the  Vistula  and  the  Tanais  or  Don,  the  latter  ex- 
tended  from  the  Tanais  to  the  Volga. 

I.  4.  Of  the  countries  on  the  north  of  the  Baltic, 
Herodotus  seems  to  have  kno\vn  nothing;  to  the 
Romans  they  were  known  by  the  name  of  Scandi- 
navia. 

I.  5.  The  tribes  who  occupied  the  country  be- 
tween  the  Baltic  and  the  Danube,  the  Rhine,  and 
the  Vistula,  were  equally  unknown  to  Herodotus; 
to  the  Romans  they  were  known  by  the  name  of 
Germans. 

I.  6.  At  a  very   early  period,   a  division    of 
Scythians  had  a«l\  anced  to  the  eastern  shore  of  the 

central 


c 
i 
( 

I 

a 

11 
ii 
s 

tJ 
tl 


I 

d 


4. 

(21 

h 

01 
\ 

ti: 


■«i 


on  i£s  east, 
n  of  moun- 
atic  Scythia 
liin,  and  the 

an  of  Celts, 
irope  which 

E  of  Scythia 
the  original 
part  within, 
i  preserved; 
the  original 
side  of  the 
rmatia,  and 
/\siatic  Sar- 
itry  between 
le  latter  ex- 

if  the  Baltic, 
hing;  to  the 
e  of  Scandi- 

country  be- 

Rhine,  and 

Herodotus; 

the  name  of 

division    of 

shore  of  the 

central 


THE  FEUDAL  LAW. 


77 


central  part  of  Asia,  and  established  themselves 
in  the  present  country  of  the  Mongous:  by  the 
Chinese  writers,  they  are  called  Hiongnous,  by  tl:  ^ 
Romans,  to  whom  they  were  long  unknown,  they 
arc  called  Huns. 

I.  7.  At  a  later  period,  several  tribes  of  these 
nations  spread  themselves  over  different  territories, 
in  the  European  and  Asiatic  parts  of  Modern  Rus- 
sia, and  over  Bohemia,  Poland  and  Dalmatia ;  by 
the  historians  of  the  fall  of  the  Roman  empire, 
they  are  called  Sclav i  or  Sclavones.* 

11. 

THE  GRADUAL  EXTENSION  AND 
DATES  OF  THE  PRINCIPAL  CONQUESTS 
MADE  BY  THESE  NATIONS  next  come  un- 
der  consideration. 

In  the  reign  of  Augustus  they  were  powerful 
enemies  to  the  Romans;  they  had  not,  however, 

*  Major  Rennel'a  Gcograjihical  System  of  Herodotus,  Land. 
4/0,  1800;  D*Anville,  Etata  form6s  en  Eurojie  afirea  la  chute 
de  I'emfnre  Romain,  4to,  Paris,  1771;  and  his  Geografihie 
ancienne  abrigfe.  Parts,  3  vol.  8vo,  1768.  Celiarius,  Geogra- 
phia  Antiqua,  Leifisite,  2  vol.  4to,  1758;  Modern  Universal 
History,  vol.  4.  ft.  313—379.  and  Mr.  Pinkerton's  Dissertation 
on  the  Origin  and  Progress  of  the  Scythians  or  Goths,  8vo, 
1787.  Some  of  his  facts,  arguments  or  conclusions,  may  be 
denied,  but  neither  his  learning  nor  his  ingenuity  can  be 
disputed. 

made 


s-  ' 


^MS*^»' 


-  -J 


i-if^j*-' 


d-.-f' 


78 


THK  II'UDAL  LAW. 


made  any  impression  on  their  territory,  uhen  1  a- 
citus  wrote;  l)Ut  he  pionounccd  them,  "  more  Ibr- 
"  midable   enemies  than  the  Samnites,  Carthagi- 
"  nians,  or  Partliians."    He  seems  to  intimate  an 
apprehension,  that  the  preservation  of  the  Roman 
empire  depended  on  the  quarrels  of  the  Barbarians 
among  themselves.  "  The  Bructeri,"  these  are  his 
remarkable  expressions,  "  were  totally  extirpated 
"  by  the  neighbouring  tribes,   provoked  by  their 
"  insolenee,  allured  by  llieir   hopes  of  spoil,  and 
*'  perhaps  inspired  l)y  the  tutelar  deities  of  the  em 
"  pire.  Above  sixty  thousand  Barbarians  were  des- 
"  troyed:  not  by  the  Roman  arms;  but  in  our  sight, 
"  and  for  our  entertainment.  May  the  nations,  ene- 
"  mies  of  Rome,  ever  preserve  this  enmity  to  each 
"other!  We  have  now  attained  the  utmost  verge 
"  of  prosperity,  and  have  nothing  left  to  demand 
"  of  fortune,  exeept  die  discord  of  the  Barbariiins." 
In  the  reign  of  Marcus  Antoninus,  all  the  nations 
of  Germany  and  S  irmatia,  entered  into  a  league 
against  the  Romans;  he  dissipated  it.— In  less  than 
a  century  the  Germans  invaded  the  empire  in  every 
part  of  its  territory,  on  tlie  Rhine  and  the  Danube. 
Of  all  the  tribes,  who  invaded  the  empire,  the 
Goths  are  the   most  remarkable.    The  universal 
tradition  of  the  nations  of  the  north,  and  the  uni- 
versal language  of  their  ancient  writers,  place  the 
Goths,  as  earlv  us  general  history  reaches,  among 

the 


1 


uhcn  Ta- 
morc  for- 
Ciirtluigi- 
itimate  an 
he  Roman 
Barbarians 
-se  are  his 
extirpated 
I  by  their 
spoil,  and 
of  the  em 
i  were  des- 
1  our  sight, 
tions,  ene- 
ity  to  each 
nost  Aerge 
to  demand 
iirbarimis." 
the  nations 
)  a  league 
'n  less  than 
irc  in  every 
le  Danube, 
jmpire,  the 
J  universal 
id  the  uni- 
,  place  the 
les,  among 
the 


THE  FEUDAL  LAW. 


ry 


the  nations  on  the  Baltic,  and  assigns  the  denomi- 
nation of  Visigoths  or  western  Goths,  to  those 
tribes  of  them,  which  inhabited  that  part  of  Scan- 
dinavia which  borders  on  Denmark,  and  the  deno- 
mination of  Ostrogoths  or  eastern  Goths,  to  those, 
which  inhabited  the  more  eastern  parts  of  the  Bal- 
tic. In  all  their  emigrations  and  settlements,  thej 
preserved  their  names,  and  the  same  relative  situa- 
tion. Towards  the  end  of  the  first  century  of  the 
Christian  aera,  a  large  establishment  of  them  is 
found  on  the  Vistula,  and  numerous  tribes  of  the 
same  origin,  but  known  by  the  appellation  of  Van- 
dals, are  found  on  the  Oder. — History  then  shews 
their  emigrations  to  the  Euxine,  the  settlements  of 
the  Ostrogoths  in  the  southern  parts  of  Asia  Mi- 
nor, and  the  settlements  of  the  Visigoths  in  Thrace. 
At  the  battle  of  Adrianople  the  Goths  obtained 
over  the  emperor  Valens,  a  victory  from  which  the 
empire  of  the  west  never  recovered. 

The  irruptions  of  the  northern  nations,  which 
ended  in  their  permanent  settlements  in  the  territo- 
ries of  the  Roman  empire,  may  be  traced  to  the 
final  division  of  the  empire,  between  Arcadius  and 
Honorius,  the  sons  of  Theodosius  the  great  in  395. 
The  empire  of  the  east,  comprising  Thrace,  Mace- 
donia, Greece,  Dacia,  Asia  Minor,  Syria,  and 
^ligypt,  was  assigned  to  the  former ;  the  empire  of 
the  west,  comprising  Italy,  Africa,  Gaul,  Spain, 

N  Noricum, 


f 


jftKgwfe- 


10 


80 


THE  FFX'DAL  LAW. 


Noriciim,  Pannonia,  Dalmatia,  and  Mcesia,  was  as-  Jfter^ 


signed  to  the  latttr. 

In  the  year  406,  the  Vandals,  Suevi,  and  Alani, 
who  inhabited  the  countries  bordering  on  the  Bal- 
tic, made  an  irruption  into  Gaul ;  from  Gaul  they 
advanced  into  Si)ain,  about  the  year  4:5;  they 
were  driven  from  Spain  by  the  Visigoths,  and  m- 
vaded  Africa,  where  they  formed  a  kingdom.     - 

About  the  year  431,  the  Franks,  Alemaimi  and 
Burgundians  penetrated  into  Gaul.  Of  these  na- 
tions, the  Franks  became  the  most  powerful,  and 
having  cither  subdued  or  expelled  the  others,  made 
themselves  masters  of  the  whole  of  those  extensive 
provinces,  which  from  them,  received  the  name 
of  France.         -  .         -         -         -         - 

Pannonia  and  lllyricum,  were  conquered  by  the 
Huns;  Rlioetia,  Noricum,  and  Vividelicia,  by  the 
Ostrogoths ;  and  these  were  some  time  afterwiu-ds 
conquered  by  the  Franks. 

In  449,  the  Saxons  invaded  Great  Britain.  The 
Heruliar,s  marched  into  Italy,  under  the  commiuid 
of  the  5  ling  Odoacer;  and  in  47G  overturned  the 
empire  o    the  west.  -  .         .         - 

From  Italy,  in  493,  they  were  expelled  by  the 
Ostrogoths.  -  -  .  . 

About   the  year   568,  the  Lombards,    issuing 
fron>   the    Marck  of   Bradenburgh    invaded   the 
Higher  Italy,  and  founded  an  empire,  called  the 
kingdom  of  the  Lombards.     After  this,  little  re- 
mained 


395 
406 


4i; 


431 


449 


476 


493 


I,.. 


X 


THE  FEUDAL  LAW. 


81 


a,  was  as-  a^*J^ 
395 
md  Alani,     406 
n  the  Bul- 
Guul  they 
1. 1 5  ;    they 
IS,  and  in- 
dom.     -         413 
maiini  and 

these  na- 
verful,  and 
hers,  made 
\i  extensive 

the  name 

431 
2red  by  the 
cia,  by  the 
;  at'terwiirds 

ritain.  The     449 
2  commiuid 
i-rturned  the 

476 
:lled  by  the 

493 
ds,  issuing 
nvaded  the 
,  called  the 
lis,  little  re- 
mained 


remained  in  Europe  of  the  Roman  empire,  besides  Aftoi 
the  Middle  and  inferior  Italy.  These,  from  die 
time  of  the  emperor  Justinian's  eonquest  of  Italy 
by  the  arms  of  Belisarius  and  Narsi  ,  belonged  to 
the  emperor  of  the  east,  who  governed  them  by  an 
Exarch,  whose  residence  was  lixed  at  Ravenna, 
and  by  some  subordinate  officers,  called  Dukes.      5fi8 

In  752,  the  Exarchate  of  Ravenna,  and  all  the 
remaining  possessions  of  the  emperor  in  Italy, 
were  conquered  by  the  Lombards.  This,  as  it  was 
the  final  extinction  of  the  Roman  empire  in  Europe, 
was  the  completion,  in  that  quarter  of  the  globe,  of 
those  conquests  which  established  the  law  of  the 
feud.  -  -  .  -  .  752 

The  nations  by  whom  these  conquests  were 
made,  came,  it  is  evident,  from  dift'erent  countries, 
at  different  periods,  spoke  different  languages,  and 
were  under  the  command  of  separate  leaders;  yet 
appear  to  have  established,  in  almost  every  state, 
where  their  polity  prevailed,  nearly  the  same  system 
of  law.  This  system  is  known  by  the  appellation 
of  the  Feudal  Law. — Modern  researches  have 
shown  that  something  very  like  feudalism  has  im- 
memorially  prevailed  in  India. 

III. 

THE  principal  written  documents,  which  are 
the  sources  from  M'hich   the  learning  of  foreign 

feuds 


^li 


/ 


|).tj 


s/jj  I 


gg  THK  FEUDAL  LAW. 

feuds  is  derived,  mjiy  Ijc  divided  into  Codes  of 
Laws,  Capitularies,  and  Collections  of  Customs. 

With    respect    to    FEUDAL    LEARNING 
ill  general,  it  was  long  after  the  first  revival  ol 
letters  in  Europe,  that  the  learned  engaged  in  the 
study   of  the  laws  or  antiquities  of  modern  na- 
tions.    When  their  curiosity  was  first  directed  to 
them,  the    barbarous    style   in  which  they    are 
written,  and  the  rough  and    inartificial  state  of 
manners  they  represent,  were  so  shocking  to  their 
classical  prejudices,  that    they   appear    to    have 
turned  from  them  with  disgust  and  contempt.    In 
time,  however,  they  became  sensible  of  their  im- 
portance. They   were  led  to  the  study  of  them, 
by  those  treatises  on  the  feudal  laws,  which  are 
generally  printed  at  the  end  of  the  Justinianean 
Collection.     These   are  of  Lombard  extraction, 
and  naturally  gave  rise  to  the  opinion,  that  fiefs 
appeared  first  in  Italy,  and  were  introduced  by 
the  Lombards.   From  Italy,  the  study  of  juris- 
prudence was  imported  into  Germany;  and  this 
opinion  accompanied  it  thither.    At  first,  it  ap- 
pears to  have  universally  prevailed:  but,  when  a 
more  extensive  knowledge  of  the  antiquities  of 
the  German  empire  was  obtained,  there  appeared 
reason  to  call  it  in  question.    Many  thought  the 
claims  of  other  nations,  to  the  honour  of  having 
introduced  the  feudal  polity,  were  better  founded: 
some  ascribed  them  to  the  Franks;  others,  denying 

the 


Codes  of 
ustoms. 

fVRNING 

revival  ol' 
ged  in  thi- 
odern  na- 
lirectcd  to 

they  arc 
il  state  of 
ng  to  their 
•  to  have 
ktempt.  Ill 
f  their  im- 
r  of  them- 

which  are 
ustinianean 
extraction, 
I,  that  fiefs 
"oduccd  by 
y  of  juris- 
)",  and  this 
first,  it  ap- 
ut,  when  a 
tiquities   of 
re  appeared 
thought  the 
r  of  having 
er  founded: 
;rs,  denying 
the 


THE  FEUDAL  LAW  83 

the  exclusive  claim  of  any  particular  nation,  ascrib- 
ed them  to  the  German  tribes  in  genml,  and  as- 
serted, that  the  outlJm  of  the  law  of  feuds  iS  clearly 
discoverable  in  the  habits,  manners,  and  laws  of 
those  nations,  while  atill  inhabitants  of  the  Hercy- 
nian  wood.  The  time,  when  feuds  first  made  their 
appearance,  has  equally  been  a  subject  of  contro- 
versy. The  word  itself  is  not  to  be  found  in  any 
public  document  of  authenticity  before  the  eleventh 
century. 

III.  L 
The  most  ancient,  and  one  of  the  most  import 
ant,  CODES  OF  LAW,  in  use  among  the  feudal 
nations,  is  the  Salic  Jmw.  It  is  thought  to  derive  its 
appellation  from  the  Salians,  who   inhabited   the 
country  from  the  Leser  to  the  Carbornarian  wood, 
on  the  confines  of  Brabant  and  Hainault.  It  was 
probably  written  in  the  Latin  language,  about  the 
beginning  of  the  fifth  century,  by  Wisogastus,  Bo- 
dogastus,  Salogastus  and  Windogastus,  the  chiefs 
of  the  nation.    It  received  considerable  additions 
fromClovis,Childebcrt,  Clotaire,  Charlemagne,  and 
Lewis  the  Debonnaire.    There  are  two  editiftns  oi 
it:  they  differ  so  considerably, that  they  have  been 
sometimes  treated  as  distinct  codes. 

2.  The 


»Si^^«^iii,yeffi!fcf.s 


'J>if^->0^^-irki:imimi, 


84 


THE  I  IXDAl-  i,AW. 


2.  'I'lif  Franks,  who  occupied  the  country  upon 
the  Khinc,  the  Mcusc,  and  the  Scheldt,  were 
known  by  the  name  of  the  Ui|)uarians,  and  were 
governed  by  a  collection  of  laws,  which  from 
them  was  called  the  JiipiKtrian  Law.  They  seem 
to  have  been  first  promulgated  by  Thcodoric,  and 
to  have  been  auKmented  by  Dagobert.  The  pu- 
nishments inflicted  liy  the  Uipuarian  are  more 
severe  than  the  punishments  inflicted  by  the  Salic 
hiw;  and  the  Uipuarian  law  mentions  the  trial  by 
judgment  of  God,  md  by  duel. 

Thcodoric  also  appears  to  have  first  promulgated 
f/ic  law  of  the  Jhmanm. 

3.  The  law  of  the  Biirgundians  is  supposed  to 
have  been  promulgated  about  the  beginning  of  the 
fifth  century;  that  nation  occupied  the  country 
which  extends  itself  from  Alsace  to  the  Medi- 
terranean, between  the  Rhone  and  the  Alps. 
This  was  the  most  flourishing  of  the  Gallic  pro- 
vinces invaded  by  the  Germans;  they  established 
themselves  in  it,  with  the  consent  of  the  emperor 
Honorius.  An  alliance  subsisted  for  a  considerable 
time,  between  them  and  the  Romans;  and  some  parts 
of  their  law  appear  to  be  taken  from  the  Roman  law. 

4.  One  of  the  most  ancient  of  the  German 
codes  is  that  by  which  the  Angliones  and  the 
JVerini  were  governed.  The  territories  of  these 
nations  were  contiguous  to  those  of  the  Saxons; 

and 


THE  I'KUDAL  LAW. 


85 


try  upon 
:lt,  were 
iiul  were 
ch  from 
ley  seem 
oric,  and 
The  pn- 
ire  more 
the  Salic 
e  trial  by 

mulgated 

>posed  to 
ing  of  the 

country 
lie  Medi- 
he  Alps, 
allic  pro- 
stablished 
:  emperor 
isideral)le 
lome  parts 
9man  law. 
;  German 

and  the 

s  of  these 

:  Saxons; 

and 


and  the  Angliones  are  ^jenerally  supposed  to  be  the 
nation  known  in  our  history  by  the  name  of  Angles. 

A  considerable  portion  of  thv  Jaiw  oj' the  Saxons 
has  reached  us. 

The  Goths  also  had  their  laws,  which  were  ])ro- 
mulgated  by  the  Ostrogoths  in  Italy;  by  the  Visi- 
goths in  Spain. 

The  Goths  were  dispossessed  of  their  conquests 
in  Italy  by  the  Lombards.  No  ancient  code  of  law 
is  more  famous  than  t/w  Law  of  t/ie  Lombards ; 
none  discovers  more  eviv!t;nt  traces  of  the  feudal 
polity.  It  survived  the  destruction  of  that  emi)ire 
by  Charlemagne,  and  is  said  to  be  in  force  even 
now,  in  some  cities  of  Italy. 

These  were  the  principal  laws,  which  the  foreign 
nations,  from  whom  the  modern  governments  of 
Europe  date  their  origin,  first  estal)lished  in  the 
countries,  in  which  they  formed  their  respective 
settlements.  Some  degree  of  analogy  may  be  dis- 
covered between  them  and  the  general  customs, 
which,  from  the  accounts  of  Caesar  and  Tacitus, 
we  learn  to  have  prevailed  among  them,  in  their 
supjwsed  aboriginal  state.  A  considerable  part  also 
of  them  is  evidently  borrowed  from,  the  Roman 
law,  by  which,  in  this  instance,  we  must  under- 
stand  the  Theodosian  code.  This  was  the  more 
natural,  as,  notwithstanding  the  publication  of  the 
Ripuarian  and  Salic  codes,  the  Roman  subjects  in 
Gaul  were  indulged  in  the  free  use  of  the  Theo. 

dosian 


\:  h 


#irl'«fei',.itfia<-H  -  4^  >  -* 


S<    ^, 


r 


8j6 


THE  FEUDAL  LAW. 


dosian  laws,  especially  in  the  cases  of  marriage, 
inheritance,  and  other  important  transactions  of 
private  life.  In  their  establishments  of  magistrates 
and  civil  tribunals,  an  imitation  of  the  Roman  po- 
lity is  dicoverable  among  the  Franks;  and,  for  a 
considerable  time  after  their  first  conquests,  fre- 
quent  instances  are  to  be  found,  in  their  history, 
of  a  difference,  and,  in  some  instances,  even  of  an 
acknowledgment  of  territorial  submission  to  the 
emperors  of  Rome. 

III.  2. 
In  die  course  of  time,  all  these  laws  were,  in 
some  measure  at  least,  superseded  by  the  CAPI- 
TULARIES.   The  word  Capitulary  is  generic; 
and  denotes  every  kind  of  literary  composition, 
divided  into  chapters.    Laws  of  this  description 
were  promulgated  by  Childebert,  Clotaire,  Carlo- 
man,  and  Pepin:  but  no  sovereign  seems  to  have 
promulgated  so  many  of  them  as  Charlemagne. 
That  monarch  appears  to  have  wished  to  effect, 
in  a  certain  degree,  an  uniformity  of  law  through- 
out his  extensive  dominions.    With  this  view,  it  is 
supposed,  he  added  many  laws,  divided  into  small 
chapters  or  heads,  to  the  existing  codes,  some- 
times to  explain,  sometimes  to  amend,  and  some- 
times to  reconcile  or  remove  the  difference  be- 
tween them.   They  were  generally  promulgated, 
in  public  assemblies,  composed  of  the  sovereign 

and 


-ITt^'  i';  ^'it'^^'*'''-  -^^^  • 


THE  FEUDAL  LAW. 


87 


marriage, 
ictions  of 
lagislrates 
Loman  po- 
ind, for  a 
uests,  fre- 
ir  history, 
even  of  an 
ion  to  the 


s  were,  hi 
the  CAPI- 
is  generic; 
)mposition, 
description 
aire,  Carlo- 
;ms  to  have 
larlemagne. 
d  to  effect, 
iw  through- 
s  view,  it  is 
d  into  small 
)des,  some- 
and  some- 
iference  be- 
romulgated, 
le  sovereign 
II  nd 


and  the  chief  men  of  the  nation,  as  well  ecclesi- 
astics as  secular.  They  regulated,  equally,  the 
spiritual  and  temporal  administration  of  the  king- 
dom. The  execution  of  them  was  intrusted  to 
the  bishops,  the  counts,  and  the  missi  regii.  Many 
copies  of  them  were  made,  one  of  which  was  ge- 
nerally preserved  in  the  royal  archives.  The  au- 
thority of  the  Capitularies  was  very  extensive ;  it 
prevailed  in  every  kingdom,  under  the  dominion 
of  the  Franks,  and  was  submitted  to  in  many  parts 
of  Italy  and  Germany. 

The  earliest  collection  of  the  Capitularies  is 
that  of  Angesise,  abbot  of  Fontenelles.  It  was 
adopted  by  Lewis  the  Debonnaire  and  Charles  the 
Bald,  and  was  publicly  approved  of,  in  many 
councils  of  France  and  Germany.  But,  as  An- 
gesise had  omitted  many  Capitularies  in  his  col- 
lection, Benedict,  the  Levite  or  Deacon  of  the 
church  of  Mentz,  added  three  books  to  them. 
Each  of  the  collections  was  considered  to  be 
authentic,  and  of  course  appealed  to  as  law.  Subse* 
quent  additions  have  been  made  to  them.  The  best 
edition  of  them  is  that  of  Baluze  in  1697;  a  splen- 
did republication  of  this  edition  was  begun  by  M. 
de  Chiniac  in  1780;  he  intended  to  comprise  it  in 
four  volumes.  Two  only  have  yet  made  their  ap- 
pearance. 

In  the  collection  of  ancient  laws,  the  capitu- 
laries are  generally  followed  by  the  Formularia, 
or  forms  of  forensic  proceedings  and  legal  instru- 

P  ments. 


m 


M'^ 


f 


Qg  THE  FEUDAL  LAW. 

ments.  Of  these,    the  formulaic   of  Marculphus 
is   the  most   curious.    The   formulariu   generally 
close  the  collections  of  ancient   laws.    With   the 
Merovingian  race,  the  Salic,  Burgundian  and  Visi- 
gothic  laws  expired.    The  capitularies  remained 
in  force  in   Italy  longer  than  in  Germany;    and 
in  France,  longer  than  in  Italy.  The   incursions 
of  the  Normans,  the  intestine  confusion  and  weak- 
ness of  government  under  the  successors  of  Char- 
lemagne, and,   abo^'e  all,  the  publication   of  the 
Decretum   of  Gr.aian,   which  toUiUy   superseded 
them  in  all  religious  concerns,  put  an  end  to  their 
audiority  in  France. 

III.  3. 

They  were  in  some  measure  succeeded  by  the 
CUSTOMARY  LAW. 

1,  It  is  not  to  be  supposed,  that  the  codes  of 
law,   of  which  we  have  been   speaking,   entirely 
abrogated  the  usages  or  customs  of  the  countries 
in  which  they    were   promulgated.     Those   laws 
only  were  abrogated  by  them  which  were  abro- 
gated by  the  regulations  they  established.  In  other 
respects,  the  codes  not  only  permitted,  but,  in 
some  instances,  expressly  directed,  that  the  Jncient 
Customs  should  remain  in  force.    Thus,  in  all  the 
countries  governed  by   the   ancient   codes,  there 
existed  at  the  same  time,  a  written  body  of  law, 
sanctioned  by  public  authority,    and   usages  or 

customs. 


, .  ,«irf.*^J*£««r-M».n^*«**-'" 


K,^*>*t>n**i««S«**'^' 


,^^i*«#S^  ■*»■% J^*s*T'>*-^-^ 


THE  FEUDAL  LAW. 


89 


arculphus 
generally 
With   the 
I  and  Visi- 
remained 
lany ;    and 
incursions 
and  vveak- 
s  of  Char- 
ion   of  the 
superseded 
nd  to  their 


icd  by  the 

le  codes  of 
ig,  entirely 
le  countries 
rhose  laws 
were  abro- 
ad. In  other 
ted,  but,  in 
;  the  Ancient 
s,  in  all  the 
:ode5,  there 
ody  of  law, 
I  usages  or 
customs, 


customs,  admitted  to  be  of  public  authority,  by 
which  those  cases  were  frequently  governed,  for 
which  the  written  body  of  law  contained  no  pro- 
vision. After  the  ancient  codes  and  capitularies  fell 
into  desuetude,  these  customs  were  multiplied. 

2.  By  degrees  JFritten  Colkctiom  of  them  were 
made  by  public  authority;  others,  by  individuals, 
and,  depended,  therefore,  for  their  weight  on  the 
private  authority  of  the  individuals,  by  whom  they 
were  made,  and  the  authority  which  they  insensi- 
bly obtained  in  the  courts  of  justice. 

Collections  of  this  nature  committed  to  writing 
by  public  authority  form  a  considerable  part  of 
the  law  of  France,  and  are  a  striking  feature  of 
the  jurisprudence  of  that  kingdom.  The  origin 
of  them  may  be  traced  to  the  beginning  of  the 
Capetian  race.  Tiie  monarchs  of  that  time,  in 
the  charters  by  \vhich  they  granted  fiefs,  pre- 
scribed the  terms  upon  which  they  were  to  be 
held.  These,  they  often  abridged,  enlarged,  and 
explained,  by  subsequent  charters:  they  also 
publislied  charters  of  a  more  extensive  nature. 
vSome  of  them  contained  regulations  for  their  own 
domain;  others  contained  general  regulations  for 
the  kingdom  at  large.  In  imitation  of  their  mo- 
narch, the  great  vassals  of  the  crov.n  granted  their 
charters  for  the  regulation  of  the  possessions  held  of 
them.  In  the  same  manner,  when  allodial  land  was 
changed  to  feudal,  charters  were  granted  for  the 
regulation   of  the  tiefs;   and,   ^vhen  villeins  were 

enfranchised. 


ill 


li 


^-»*f4f»«*MR^^»^-^^****' 


-m^^^^m^^smm^^^^^x^^^mii. 


90 


THE  FEUDAL  LAW. 


enfranchised,  possessions  were  generally  given 
them,  and  charters  were  granted  to  regulate  these 
possessions.  Thus,  each  seignoryhad  its  particular 
usages.  Such  was  their  diversity,  that  throughout 
the  whole  kingdom,  there  could  hardly  be  found  two 
seignories,  which  were  governed,  in  every  point,  by 

the  same  law. 

3.  With  a   view    more   to    ascertain    than    to 
produce  an  uniformity  in  these  usages,  though  the 
latter  of  these  objects    was   not    quite  neglected, 
Charles  the  Seventh  and  his  successors  caused  to 
be  reduced  to  writing  the  different  local  customs. 
In  1453,  sometime  after  Charles  the  Seventh  had 
expelled  the  English  from  France,  he  published 
an  ordinance,  by  which  he  directed  that  all  the 
customs  and  ordinances  should  be  committed  to 
writing,  and  verified  by  the  practitioners  of  each 
place,  then  examined  and  sanctioned  by  the  great 
council   and   parliament;    u.id  that   the   customs, 
thus  sanctioned,  and  those  only,  should  have  the 
force  of  laws.    Such   were  the   obstacles  in   the 
way  of  this  measure,  that  forty-two  years  elapsed 
before  the  customs  of  any  one  place  were  verified. 
From  that  time  the  measure  lingered,  but  it  was 
resumed  in  the  reign  of  Lewis  the  XII;  and  about 
the  year  1609,  it  was  completed.  The  customs  of 
Paris,  Orltans,  Normrcudy,  and  some  other  places, 
were  afterwards  reformed.  Those  of  Artois  and  St. 
Omer  were  reformed  within  the  last  hundred  years. 

The 


r  .^^v.f^rTS»^<»*"*-:-*? 


&)-ji;^'rt'*****^'=>''«^' 


•^iiMtm^set^^'ti^"^ 


lj,^»iK^->?t4**flr*»4  -#«!Ni«r^'*:^-««- 


THE  FEUDAL  LAW. 


91 


Uy  given 
lute  these 
particular 
liroughout 
found  two 
{  point,  by 

I  than  to 
hough  the 
neglected, 

caused  to 
il  customs. 
;venth  had 

published 
hat  all  the 
nmitted  to 
^rs  of  each 
ly  the  great 
L'  customs, 
d  have  the 
:les  in  the 
;ars  elapsed 
ire  verified. 

but  it  was 
;  and  about 

customs  of 

ther  places, 

tois  and  St. 

idred  years. 

The 


The  manner  of  proceeding,  both  in  reducing 
the  customs  and  reforming  them,  was,  generally 
speaking,  as  follows.  The  king,  by  his  letters 
patent,  ordered  an  assembly  of  the  three  states  of 
each  province.  When  this  assembly  met,  it 
directed  the  royal  judges,  greffiers,  maires  and 
syndics,  to  prepare  memoirs  of  all  the  customs, 
usages,  and  forms  of  practice,  they  had  seen  in 
use,  from  of  old.  On  receiving  these  memoirs, 
the  states  chose  a  certain  number  of  notables,  and 
referred  the  memoirs  to  them,  with  directions  to 
put  them  in  order,  and  to  frame  a  cahier  or  short 
minute  of  their  contents.  This  was  read  at  the 
assembly  of  the  states;  and  it  was  there  con- 
sidered, whether  the  customs  were  such  as  they 
were  stated  to  be  in  the  cahier:  at  each  luticle, 
any  deputy  of  the  state  was  at  liberty  to  mention 
such  observations  as  occurred  to  him:  the  articles 
were  then  adopted,  rejected,  or  modified,  at  the 
pleasure  of  the  assembly,  and,  if  they  were 
sanctioned,  were  taken  to  parliament  and  re- 
gistered. The  customs  of  each  place,  thus  reduced 
to  writing  and  sanctioned,  were  called  the  Coutu- 
mier  of  that  place:  they  were  formed  into  one 
collection,  called  the  C(  utumier  de  France,  or  the 
Grand  Coutumier.  The  best  edition  of  it  is 
Richebourgh's,  in  four  volumes,  in  folio.  It  con- 
tains about  one  hundred  collections  of  the  customs 
of  provinces,  and  two  hundred  collections  of  the 
customs  of  cities,  towns,  or  villages.  Each  cou- 
tumier 


li^ 


'^^^^^^^f^^ma&^ism^^M^ix^m&m^s^ii 


92 


THE  FEUDAL  LAW. 


tumicr  has  been  the  subject  of  a  commentary: 
five  and  twenty  commentaries,  (some  of  them 
voUiminoUM),  have  appeared  on  the  coutumier  of 
Paris.  Of  these  commentaries,  that  of  Dumoulin 
has  the  jjreatest  celebrity.  Lcs  Etahlisements  de 
St.  Louis,  hold  a  hiirh  rank  for  the  wisdom  with 
which  they  are  Avritten,  and  the  curious  matter 
they  contain.  The  Coutumier  de  Normividie,  for 
its  high  antifiuity,  and  the  relation  it  bears  to  the 
feudal  jurisprudence  of  England,  is  particularly 
interesting  to  an  English  reader :  Basnage's  edition, 
and  his  learned    commentary   upon    it,  are  well 

known. 

4.  These  are  the  princii)al  sources  of  the  Feudal 
Jurisprudence  of  France;  it  remains  to  take  some 
notice    of    the    civef  cotvpilations,    by  which   the 
feudal  policy  of  other  kingdoms  is  regulated.  The 
most   curious  of  all  collections  of  feudal  law  is 
that  entitled  Assizes  de  Jerusalem.    In  1099,  the 
object  of  the  first  crusade  was  eftccted  by  the  con- 
quest of  Jerusalem.    Godfrey   of  Bouillon,    who 
was   elected  king  of  Jerusalem,  Init  refused  the 
title,  called  an  assembly  of  the  states  of- his  new- 
kingdom.    The   patriarch,   the   chief  lords,  their 
vassals,  and  their  arriere- vassals  attended.    With 
general  consent,  the  collection    in  question    was 
formed,  under  the  title  of  "  Les  Loix,  Statuts,  is' 
"  Coutumes,   accordces  au  Roi/aume  de  Jerusalem, 
''par  Godefroi  de  Bouillon,  Van   1099;  par  Vavis 
"  du  Patriarche  et  des  Barons.""  As  this  collection 

Ava;* 


r  ^^iiipBt^.t>.,»^*»-^vsa?>i9Mri*'i!i*i«-=is 


--«iiiirtet5._-.vH--.Aiw-^  »«»ftea^^:**B' 


,4t^.^P?»BBlf'^»rt«*5**«^<K^S?l^^r^ 


mentary : 
of  them 
tumicr  of 
3umoulin 
•f merits  de 
dom  with 
IS  matter 
amlie,  for 
;ars  to  the 
irticularly 
;'s  edition, 
are   well 

he  Feudal 
take  some 
which  the 
atcd.  The 
:lal  law  is 

1099,  the 
iv  the  con- 
illon,  who 
c fused  the 
if  his  new 
jrds,  their 
led.  With 
;stion  was 
StatHts,  £s' 
Jerusalem, 

par  Vavis 
i  collection 


THE  FEUDAL  LAW. 


9S 


was  made  at  a  general  assembly  of  feudal  lords, 
it  may  naturally  be  supposed  to  contain  some  of 
the  wisest  and  most  striking  rules,  by  which  the 
feudal  polity  of  Europe  was  then  regulated.  But, 
as  the  principal  personages  who  engaged  in  that 
crusade  came  from  France,  it  mav  be  considered  as 
particularly  descriptive  of  the  laws  and  usages  of 
that  country. 

5.  The  next  to  these,  in  importance,  arc  the 
Books  of  Fiefs,  which,  probably  in  the  reign  of 
Frederick  the  Second,  Hugolinus,  a  Bononian  law- 
yer, compiled  from  the  writingsof  O^ertus,  of  Orto, 
and  Gerhardus  Niger,  and  the  various  customary 
laws  then  prevailing  in  Italy ;  they  are  sometimes 
added,  under  the  title  Decima  CoUatio,  to  the  No- 
vells;  and  are  to  be  found  in  most  of  the  editions 
of  the  Corpus  Juris  Civilis.  In  the  edition  of  Cujas 
they  consist  of  five  books;  the  first,  contains  the 
treatises  of  Gerhardus  Niger;  the  second  and  third, 
those  of  Obertus  of  Orto ;  the  fourtli,  is  a  selection 
from  various  authors;  the  fifth,  is  a  collection  of  con- 
stitutions of  different  emperors  respecting  feuds. [tf] 
To  these,  the  Golden  Bull  of  the  emperor  Charles 
the  Fourth  is  often  added.  Authors  are  by  no  means 
agreed,  either  as  to  the  order,  or  the  division  of  this 
collection.   Several  editions  have  been  made  of  it. 

6.  In  that  published  by  Joannes  Calvinus  or 
Calvus,  at  Frankfort,  in  1611,  there  is  a  collection 
of  every  passage  in  the  canon  law,  that  seems  to 

relate 

\d']  This  collection  is  of  immense  interest  to  those  who  wish 
le  become  well  acquAintcd  with  the  system  of  the  feudal 

law, 


iW*%'^>t*^^f^^i^*f^*^ 


'm^^m^^sm^ms^mmm&pmmmMi^mm^im'Smmmms^fm. 


■'■^^tf^ 


94 


THE  FEUDAL  LAW. 


t 


relate  to  the  law  of  feuds.  As  this  edition  is  scarce, 
and  it  may  happen,  that  some  English  reader 
may  be  desirous  of  seeing  all  these  passages,  the 
following  short  account  of  Calvinus  or  Calvus's 
selection  of  them,  is  transcribed  from  Hoffman's 
Dissertatio  de  Unico  Juris  Fcudalis  L^  jbardici 
Libro.— "  Jurisprudentiam  feudalem,  sex  libris 
"  comprehensam,  sive  potius  consuetudines  feu- 
"  dorum,  secundum  distributionem  Cujacianam, 
"  cdidit,  et  sub  titulo  libri  fcudorum  VI.  addidit, 

"  quidquid 

law,  and  may  serve  to  clear  up  many  obscure  points  in  En- 
glish j>uisprudence ;  we  clearly  truce  there   the  nature  and 
origin  of  the  ancient  trial  by  jury,  and  we  find  the  hypothesis 
of  lord  Kaims  fully  established,  to  wit:  that  trial  by  jury  was 
originally  nothing  more  than  a  trial  by  twelve  •witnen^es  who 
defiotied  of  facts  within  tlivir  own  knowledge,  and  not  judges  of 
fact  deciding  as  they  now  do  on  extraneous  proofs.  We  invite 
our  readers  to  turn  to  that  passage  of  the  celebrated  Scotch 
jurist.  Law  Tracts,  page  85.  and  then  take,  together  with  his 
strong,  and,  in  our  opinion,  conclusive  arguments,  the  follow- 
ing text  out  of  the  first  book,  Tit.   10.  of  the  Conauetudinet 
feudorum,  or  book  of  feuds:  SI  contentiofuerit  inter  dominum 
etjidelem  de  inveatiturdfeudi,  fier  /tares  curia  dirimatur:  Alii 
ENiM  TESTES,  etsi  idonct,  admittendi  non  sunt.  "  If  there  should 
«  be  a' controversy  between  the  lord  and  his  vassal,  let  it  be 
<«  tried  by  the  fiares  curiae,  and  let   no  other  witnesses, 
"  though  competent,  be  admitted."    To  which  we  may  add 
the  following  passages  out  of  Glanville,  who  wrote  in  England 
in  the  twelfth  century,  about  the  same  time  that  Obertus  de 

Ort'j 


, ,^.„.,,^,.,.<^.»,,«l,5^f!»«-l*W:-.VTt«'K^««*WW 


„  ,*«m»»>rt1!»^irt*'^«l«•**m««lJffJ-'B'te■I!-'J-3l'^ 


IS  scarce > 
h  reader 
ages,  the 
Culvus's 
loffman's 
jbardici 
ex  libris 
lines  feii- 
jacianam, 
[.  addidit, 
quidquid 

sints  in  En- 
nulure  and 
;  hypothesis 
by  jury  was 
tncsses  who 
ot  judges  of 
!.  We  invite 
ated  Scotch 
hcrv/ith  his 
I,  the  follow- 
onauiftudtnei 
ter  dominum 
matur:  Alii 
there  should 
sal,  let  it  be 

WITNESSES, 

we  may  add 
e  in  England 

it  Obertus  di: 
Ort'j 


•TTi 


THE  FEUDAL  LAW. 


94  a 


u 
(I 
t< 

<( 
u 
l( 
(t 
(( 
(( 


quidquid  alicujus  de  hac  materia  momenti,  in 
universo  corpore  juris  canonici  expressum  in- 
venerat;  hoc  est  totum  titulum  decretalium 
Gregorii  IX.  sive  capitula,  Insinuatione  L  Etex 
parte  tua  2.  X.  de  feudis  porro  cap.  c?eteruni, 
5.  et  novit;  13  de  Judiciis,  cap.  Qua:  in  Eccle- 
siarum,  7  de  Constitutionibus,  cap.  Ad  dures, 
10  in  quibusdam,  lii  et  Gravem,  53  de  Sent,  ex- 
comm.  cap.  Ex  transmissa,  6  et  veruni,  7  de 
foro  competente  corumque  summaria." 

7.  The 


Orto  wrote  in  Lombardy,  about  three  hundred  years  br/or-e 
Littleton.  In  his  second  book,  after  describing  the  manner  of 
proceeding  in  the  trial  by  the  grand  assize,  hecocnitione 
duodecim  wilitum,  he  says,  §  21.  Si  vero  rcfieriantur  nulli  mili- 
tes  de  vicineto  nee  in  comilatu  i/mo,  qui  uei  vehitatem  indr 
SCI  A  NT,  (/uid  juria  erit?  8cc.  "If  there  cannot  be  found  any 
"  knights  in  the  vicinage,  nor  in  the  county  itself,  who  know 
"  the  truth  qf  the  fact,  what  then  is  to  be  done?  Is  the  dc- 
''  mandant  in  that  case  to  be  nonsuited  ?"  Glanvillc  thus  states 
the  question,  but  does  not  solve  it ;  he  seems  to  think  that 
under  certain  circumstances,  the  Duel  perhaps  may  in  that 
case  be  awarded.  He  appears,  however,  to  consider  the  milim 
tea,  who  in  a  trial  by  the  grand  assize,  were  called  to  recog- 
nize the  right  of  the  parties,  merely  in  the  light  of  the  de- 
mandant's witnesses,  as  the  comfiurgatora  in  a  law-wager,  were 
witnesses  in  behalf  of  the  tenant.  And  again,  book  2.  §  12.  he 
tells  us  that  jurymen  at  common  law  are  liable  to  the  same 
exceptions  that  witnesses  are  in  the  ecclesiastical  courts: 
Mxci/ii  auteni  poitmnt  jttratoreH  i/iai  eiadein   modia  </uibua  et 

P  teaten 


isristn^se^^-'!^- 


-M'm^^mmA&^^^msi^^mekiiMmfjxmM:s^ii-^Mm^mmimm^E'?s^- 


^^^f^  Tin:  I  i:U DAL  LAW 

7.  The  next  treatise   to  be  mentioned  is,  thf 
Treatise  rle  lirnrficiis,  K---»y /i^^' .""^^[^^  ^" 
appellation  <.r  J.r^,r  r...^  ^  ^-;^';'- 
fiVst  published  by  Thonutsius  at  Halle,  I. Ob,  uit 
.  dissertation  on  its  author,  and  the  time  when 
was  written.  Ih  considers  it  to  be  certam  that  U 
was  written  after  the  year  800    and    beto.c   th 
vear  1250,  and  conjectures  tku  jt  was  not 
before  the  emperor  Otho,  and  d.at  .t  -as  wr.  tu 
before  the  emperor  Conrad  the  Second.     1  o  t^  esc 


,.„,,„  ;„  ,„,/,  r„rMaMsju.,r  rr/.r'lu>.nr.  As  we  arc^  no, 

,i.in«  a  ,r.sn-ta,inu,  wc-  shall  not  carry  -'-i-^"^';    ^^  ,  J 
■    I  1       -.n  -...vof  the  nlli-ctions  which  naturally   now 

'::  t  K  imsin  pointing  out  the  way  U.  one  o.  the  nu.^ 

o,r  ous  and  interesting  clisc.uisitions  wh.ch  the  study  o    t Ic 

n"  sh  law  afford.  It  is  highly  worthy  the  attention  ote 

.^,La,„  Jurist,  particularly  at  this  ^-^l^^f^^^^^^^^^Zd 
ruble  institution  of  trial  by  jury  is  attacked  on  all  ««>"'  ''"^ 

Clous  mnid  may  discern   wii«i  i  „rps,-nt  state 

.     1  ,.»•  timo  •  what  are   ess  suited  to  the  prest.ni  siu"^ 

r,X  t   riaTomc  time,  r„r  which  .  ..><^m.^<'^ 

skilful,  thouBl.  „lv™,-.mml.l.n(!h.."'l».  ^ "''"";,; 
llrm  m  Iw  s.cr«l  touml.uo.»  .0  the  .-emolest  ,>«cr..> 


ri*;^-'f^'  'S'.'./.SW**'^- '''^'' 


..t^*Wff^.j?^JS^  c^fW^ttsawni'^*^  -j.U^^s 


Tin:  IF.UDAI,  LAW. 


95 


d  is,  the 
Lindcr  the 
v.    It  was 
708,  with 
jc  when  it 
ain  that  it 
)ctbrc   the 
ot  written 
as  written 
To  these 
must 


s  we  arc  not 
itions  farther, 
lUiirally   How 
followcil  the 
;  of  the  most 
study  «f  the 
;cntion  of  the 
hen  the  vene- 
all  sides,  and 
by  Vundal  rc- 
Dn,  its  ancient 
the  perspica- 
sufteied  from 
present  state 
was  first  esla- 
:  performed  by 
it  it  may  stand 
ijoslerity. 


nuist  l)e  added,  the  Jus  Fntdair  Saxnnirum,  w  hieh 
seems  to  he  a  part  of,  or  an  appendix  to,  a  treatise 
of  jrreat  eelehrity  in  (lermany,  intitled  the  iSpr. 
viilum  Saxouwum.  The  Jus  Ffudule  Saxoniciitn,  is 
said  by  Struvius  to  have  been  transhited  by  tiol- 
dastiis  from  the  German  into  the  Latin  langtia^^e, 
for  the  benefit  of  tlie  Poles.  It  is  supposed  to  have 
beenpubUshed  between  the  year  1215  and  the  year 
1250.  The  Spnultim  Suiv'tcum  seems  to  have 
been  composed,  in  imitation  of  the  Specuhim  Sax- 
onicum,  probably  between  tiie  year  1250  and 
the  year  1400.  To  this  is  added  the  Jus  Feudale 
Atemannicum,  composed  about  the  same  time,  and 
probably  by  the  same  author.  But  none  of  these 
collections  acquired  the  same  authority  us  the  Books 
of  the  Fiefs.  Those  were  known  by  the  name  of 
the  Lombard  Law:  by  deforces  they  were  adniitted 
as  authority  by  most  of  the.  courts,  and  tauf^ht  in 
most  of  the  academies  of  Italy  and  (lermany. 

8.  Like  the  civil  and  canon  law,  they  became 
the  subject  of  innumerable  Glosses.  Those  oS 
Columbinus  were  so  much  esteemed,  that  no  one, 
it  is  said,  published  any  after  him.  About  the  end 
of  the  thirteenth  century,  James  of  Ardezene  pub- 
lished a  new  edition  of  the  gloss  of  Columbinus, 
and  i-idded,  under  the  title  of  Capitula  Extraordi- 
naria,  a  collection  of  adjudged  cases  on  feudal  mat- 
ters. This  is  inserted  in  some  of  the  latter  editions 
of  the  Corpus  Juris.     Aboiit  the  year  1430,  Min- 

euccius 


4*1 


!<we»lMa«!t*"'"5Ti 


3Stfv*J^«*ISgiri' 


%'-*■«•}/ 


1^  THE  FEUDAL  LAW  . 

cuccius  (\'  Prato  veicri,  a  Boiujnian  lawyer,  by 
tht  orders  of  thi  emperor  SiKisn\on.<l  gave  a  new 
edition  of  the  IkkjUs  of  the  fiefs,  w  h  vl  gloss  of 
Columbinus.  I'hesi  were  confirnmi  the  empe- 
ror Sigismond,  and  afterwards  'n  tlu  mperor 
Frederiek  (he  'I'hird,  and  publi«  i 
univer«»iit\  ofBolognu.* 


Ull 


in  »he 


•  Thli  article  is  extracted  from    he  HUi    'n  Jvn*  Rww 

no-Otrmumi  >  vf  Brunquctlui  t  the    tlialoria  Jmfit,  Gh>  '««  Ro- 

mani  rt  Ger^ama  of  ffritierciu*,  a/rradii  nfHi  tp  m  >  "Urn- 

bro/fiua't  I'r   '  gomma    to    Mm    Codfx    Legvr 

Franl{fort,  \  uol.  fot.  1613;  Baluziut'n  Prr/acr 

(aria  lirgum  /  Vfl/uorum,  1677  and  1780;  thr  > 

dalin  qfJitUchi    ,  fiublithed  at  Frankfort  on  ' 

Ato,  1750;   Str.  viu«'a  ftiatoria  Jurit,  Jen^y  4to, 

Ffudalia  'if  Th.  -naMUiy  tlalU,  8vo,  1728;  Fleuru' 

Droit  Franfah,  /'arii,  3  vol.  8vo;  generally  /iri/j 

ttitution  ail  Droi    FranfuU  d'Jrgou;    md  the  artau 

wntby  M.  Henrion  to  the  French  Jim  ^dofiedia. 


't^mmrunit 

'■II.',     -'eu- 

n,  ,t  voU. 

Sin'cta 

■oiri  du 

he  In- 

lutmmei 


I 


,^«. , -.. -,  n,..ff.iyf|..ff 


vyer,  by 

vc  a  new 

glcss  uf 

t\e  cmpc- 

wpcror 

in  'he 


[     97     J 


THE  CANON  LAW. 


urtf   Roma- 
,  Ro. 

n  "<rn- 

.arutn^ 

itrtu    >'«<» 
■1,  3  T0&. 

iW^nirr  du 
K        A/-  /«• 


The  following  sheets,  after  some  introcliictorj 
matter  respecting,  I.  the  religious  worship  and 
hierarchy  of  Pagan  Ronie;  II.  respecting  the  rise 
and  progress  of  Christianity,  from  its  being  the 
most  persecuted  uect,  to  its  becoming  the  establish- 
ed church  of  the  Roman  empire;  and  III.  respect- 
ing the  principal  orders  of  the  Christian  hierarchy; 
will  contain,  IV.  a  mention  of  the  general  materials, 
and  V.  an  historical  account  of  the  j)artieular  do- 
cuments, of  which  the  CANON  L.\\\  is  com- 
posed. 

I. 

I.  1.  It   seems    generally   understood  that  the 
ANCIENT  RELIGION  OF  ROME    was    of 

Cehic  extraction,  without  linages,  without  temples, 
and  with  few  religious  rites;  that  Numa  esta- 
blished many  ceremonies,  and  built  a  temple  for 
sacrifices  to  the  one  eternal  God;  that,  in  other 
respects,  he  left  the  religion  of  Rome  in  its  ori- 
ginal 


n 


r 


gg  THE  CANON  LAW. 

ginal  simplicity;  and  that  Tarquinius  Priscus  in- 
troduced into  it  the  superstitions  of  the  Greeks 
and  Hetruscans. 

I.  2.  THE  GODS,  whom  the   Romans  wor- 
shipped, were  divided  into  the  Dii  Majorum  Gen- 
fmm,  or  the  great  coclcstial  deities,  with  the  Dti 
Selecti:  and  the  Dii  Mlnorum  Gentium,  or  the  ui- 
ferior  gods.    The   coelestial  deities  were   twelve 
in  number:  Jupiter,  the  king  of  gods  and  men; 
Juno,  his  sister  and  wife;  Minerva,  the  goddess 
of  wisdom;  Vesta,   the  goddess  of  fire;  Ceres, 
the   goddess   of  corn  and  husbandry;   Neptune, 
the  god  of  the  sea;   \^enus,  the  goddess  of  love 
and  beauty;  Vulcan,  the  god  of  fire;  Mars,  the 
eod  of   war;    Mercury,    the    god  of  eloquence 
and  trade;    Apollo,  the  god  of    music,    poetry, 
medicine   and   augury;    and  Diana,  the  goddess 
of  the  woods.  The  Dii   Selecti  were  Saturn,  the 
eod  of  time;   Janus,  the  god   of  the  year    and 
Rhea  his   wife;   Ruto,  the   king  of  the    mfernal 
regions;   Bacchus,   the   god  of    wine;    Sol,    the 
sun-    Luna,  the   moon;   and   Genius,   each   man 
and  each  place's  tutehu-y  god.  The  Dii  Minonun 
Gentium  were  the  Dii  Indigetes,  or  heroes  ranked 
among  the  gods  on  account  of  their  heroic  virtues, 
as  Hercules,  Castor  and  Pollux,  iEneas  and  Ro- 
mulus; the  Dii  Semones,  or  Semihommes,  less 
than  gods  and  greater  than  men,  as  Pan,  Pomona, 
Flora,  Terminus,  the  Nymphs. 

I.  3.  lo 


.  •jim-^tf.sjs'ii-oswsas^?''?-*^-'  «"«*««S5 


-«»j6»!s*#»aift>****'---- ■•*«*■-•* 


TT* 


THE  CANON  LAW. 


99 


riscus  in- 
c  Greeks 

lans  wor- 
rum  Gen- 
h  the  Dii 

or  the  in- 
re  twelve 
and  men; 
e  goddebs 
re;  Ceres, 

Neptune, 
ss  of  love 
Mars,  the 

eloquence 
c,  poetry, 
le  goddess 
iaturn,  the 

year,  and 

lie    infernal 

Sol,    the 

each  man 
i  Minoriim 
oes  ranked 
oic  virtues, 
IS  and  Ro- 
mines,  less 
1,  Pomona, 

1.  3.  To 


ij33««S»!iW:  :Tr«?rSf r ' 


I.  3.  To  the  service  of  these  gods  several  col- 
leges of  priests  wcr^  dedicated: — Fifteen  Pontiffs, 
whose  office  it  Was  to  judge  and  determine  on 
all  sacred  things;  fifteen  Augurs  who,  from  the 
flight,  chirping  or  feeding  of  birds,  and  fifteen 
Aruspices  who,  from  entrails  of  victims,  derived 
omens  of  futurity;  the  Quindecemviri,  who  had 
the  care  of  the  Sibylline  books;  the  Septemviri, 
who  prepared  the  sacred  feasts;  the  Fratres  Am- 
bervales,  who  offered  up  sacrifices  for  the  fertility 
of  the  grounds;  the  Curiones,  who  officiated  in 
the  Curiae;  the  Feciales,  or  sacred  persons  em- 
ployed in  declaring  war  and  making  peace;  the 
Sodales  Titii,  whose  office  it  was  to  preserve  the 
sacred  rites  of  the  Sabines;  and  the  Rex  Sacro- 
rum,  to  whom  that  title  was  given  from  his  per- 
forming certain  sacred  rites,  which  could  only  be 
performed  by  royal  hands. 

In  addition  to  these,  each  god  had  his  Flamines, 
or  particular  priests.  The  six  vestal  virgins  had 
the  care  of  the  sacred  fire  in  the  temple  of  Vesta, 
and  the  secret  pledges  of  the  eternal  duration  of 
Rome  were  intrusted  to  them.  Ever}^  part  of  the 
empire  abounded  with  temples  and  statues,  and  in 
every  temple  and  statue  a  divine  something  was 
supposed  to  reside. 

When  we  consider  the  general  absurdity  of  the 
pagan  creed,  we  find  it  difficult  to  suppose,  that 
any  rational  mind  could  seriously  believe  its  doc- 
trines, or  that  it  should  become  the  national  religion 

of 


m 


100 


Jlli:  CANON  LAW 


of  a  great  and  sensible  people.  Those  doubts  in 
crease  on  us,  when  we  Fee  how  often  the  religious 
prejudices  of  the  Romans  were  used  by  the  leading 
men  of  Rome  as  an  engine  for  political  purposes; 
when  we  consider  the  ridicule  with  which  the  less 
and  even  the  greater  deities  were  treated  by  their 
poets,  philosophers,  and  historians;  and  when  we 
read  the  passages  in  the  works  of  Cicero  and  other 
writers,  in  which,  often  indirectly,  and  sometimes 
in  the  most  direct  terms,  they  deliver  it  as  their 
opinion,  that,  in   religion  there  are  many  truths 
which  it  is  not  expedient  the  vulgar  should  know; 
iind  many  falsehoods  which  it  is  useful  for  the 
people  to  receive  as  truths.  But  there  is  reason 
to  believe,  that  till  the  Greek  philosophy  found  its 
way  into  Rome,  the  general  body  of  the  Romans 
was  sincere  in  the  worship  of  their  gods;  and  that, 
even   after   the  introduction   of  the    Greek    phi- 
losophy, the  number  of  those  who  gave  up  the 
whole  of  the  national  creed  was  very  small.    A 
freedom,  even  from  the  lowest  kind  of  superstition, 
is  often  mentioned  by  their  writers  as  a  great  ef- 
fort of  the  human  mind:   and  the   writings    of 
Cicero  demonstratively  prove,  that  those  who  re- 
jected the  popular  superstition,  had  no  settled  sys- 
tem of  religious  belief  to  substitute  in  its  place. 
The  total  extirpation  of  pagan  superstition,  which 
pagan  philosophy  could  not  effect,  it  is  the  triumph 
of  Christianity  to  have  accomplished;  and  to  havt 
introduced  at  the  same  time,  a  simple  and  sublimi 

religion. 


THE  CANON  LAW. 


101 


oubts  in 
!  religious 
le  leading 
purposes; 
;h  the  less 
d  by  their 

when  we 
and  other 
sometimes 
it  as  their 
my  truths 
uld  know; 
ul  for  the 

is  reason 
J  found  its 
e  Romans 
;  and  that, 
Irreek  phi- 
,ve  up  the 

small.  A 
iperstition, 
a  great  ef- 
i^ritings  of 
se  who  re- 
settled sys- 
1  its  place, 
ion,  which 
he  triumph 
ind  to  have 
nd  sublimr 
religion. 


religion,  accommodated  to  all  persons,  all  times, 
and  all  circumstances,  on  which  the  weak  and  the 
strong  may  equally  rely.  * 

II. 

BY  the  law  of  Athens,  the  act  of  introducing 
foreign  deities  was  punished  with  death.  The  la\\ 
of  Rome  was  not  so  severe :  Mosheim  and  Bynker- 
shoek  seem  to  prove,  that  though  the  Romans 
would  not  allow  any  change  to  be  made  in  the  reli- 
gions which  were  publicly  professed  in  the  empire, 
nor  any  new  form  of  wofship  to  be  openly  intro- 
duced, yet  that,  except  when  it  threatened  danger 
to  the  state,  they  granted  a  FREE  TOLERA- 
TION OF  FOREIGN  WORSIHP  not  only  to 
individuals  but  to  bodies  of  men. 

The  Christians,  whose  mild,  unassuming,  and 
benevolent  morality  entitled  them  to  universal  good 
will,  were  alone  denied  the  benefit  of  this  general 
toleration.  From  the  reign  of  Nero,  till  tlie  triumph 
of  Constantine  the  Great  over  his  rival  Licinius, 
they  were  always  treated  with  harshness,  and  re- 
peatedly suffered  the  severest  persecutions. 

The  favour  of  Constantine  to  them  was,  im- 
mediately after  his  first  successes,  shown  by  his 

•  Beaufort,  Rep.  Rom.  1.  1.  Adams's  Roman  Antiquities, 
281—303.  _ 

Q  repealmg 


1 


I- 


102 


THE  CANON  LAW. 


repealing  of  the  laws  enacted  against  them.    By 
the  edict  of  Milan  he  restored  them  to  all  their 
civil  and  religious  rights,   and  allowed  them,  in 
common  with  the  rest   of  his  subjects,  the  free 
choice  and  exercise  of  their  religion.  In  the  gene- 
ral dispensation  of  his  favours,  he  held,  v.ith  an 
impartial  hand,  the  balance  between  his  christian 
and  heathen  subjects.  His  successors,  except  dur- 
ing the  short  interval  of  Julian's  reign,  strongly 
encouraged  Christianity  and  discountenanced  hea- 
thenism; and  finally,  by  the  edicts  of  Theodosius, 
the  ancient  worship  of  Rome  was  proscribed,  and 
Christianity  became  t:ie  established  religion  of  the 
empire.  Till  those  edicts,  the  spirit  of  polytheism, 
had  lingered  among  the  principal  nobility  of  Rome; 
after  them,  it  lingered  among  the  Grecian  philoso- 
phers: but  by  his  edict  in  5:^9,  Justinian  silenced 
the  schools  of  Athens,  and  to  that  aera  the  final 
extinction  of  Paganism  is  always  assigned.* 

*  Francis  Balduinua^  Conmentarim  ad  edicta  im/ieralorem 
in  CMitianoa,  Edit.  GundUng;  Bynkershoek,  Dissertatio  de 
CuUuP.eresrintt  ReSgionia  afiud  Romanoa,  in  0/iuaculia,  Lugd. 
Bat.  1719.  Moaheim,  de  Rebua  ChiHianorumante  Conatanti- 
num  Magnum,  Commentarii,  Helmstadii,  4to,  1753,  c.\.  sect. 
«.;  Seculum  firimunif  27—32.  In  his  Six  Lettera  on  Intole- 
rdnee,  London,  1791,  Sir  Geo.  Colebrooke  has  collected  many 
curious  facts  to  show,  that  the  religious  toleration  of  the  Ro- 
mans was  by  no  means  so  perfect  as  is  generally  thought. 

III.  IN 


^.^^vff!W7-"'"' 


■  ■■'^^m^^r^f^TS^^^^^^'^^^^^^^^^^^^-' 


^em.    By 
I  all  their 

them,  in 
I,  the  free 
the  gene- 
l,  with  an 
>  christian 
xept  dur- 
1,  strongly 
need  hea- 
lieodosius, 
•ibed,  and 
ion  of  the 
olytheism, 

of  Rome; 
m  philoso- 
m  silenced 
I  the  final 
£d.* 

im/ieralorem 
Dhaertatio  de 
laculisf  Lugd. 
te  Constanti- 
i3,  f.  1.  sect, 
era  on  Intok' 
llected  many 
on  of  the  Re- 
thought. 

III.  IN 


THE  CANON  LAW. 


III. 


103 


IN  respect  to  the  CHRISTIAN  HIERAR- 
CHY,  the  Roman  empire,  at  the  time  vvlien  Chris- 
tianity obtained  in  it  a  legal  establishment,  under 
Constantine  the  great,  had  reached  its  utmost  li- 
mits. It  was  divided  into  four  Praefectures :  the 
Easteni,  which  comprised  the  country  between 
Thrace  and  Persia,  the  Caucasus  and  the  Cataracts 
of  the  Nile;  the  Prsefecture  of  Illyricum,  which 
comprised  Pannonia,  Dacia,  Macedonia,  and 
Greece ;  the  Praefecture  of  Italy,  which  comprised 
Italy,  Rhoetia,  the  Islands  of  the  Mediterranean, 
and  the  part  of  Africa  from  the  westernmost  mouth 
of  the  Nile  to  Tingitana ;  and  the  Prefecture  of  the 
Gauls,  which  comprised  Spain,  Britain,  and  the 
part  of  Africa  from  Tingitana  to  the  western  ocean. 
Each  praefecture  was  divided  into  several  dioceses; 
each  diocese  into  several  provinces ;  and  in  each 
province  there  was  one,  and  sometimes  more  than 
one  mother-town,  on  which  other  towns  depended. 
The  dioceses  were  thirteen  in  number,  the  pro- 
vinces one  hundred  and  twenty. 

In  the  establishment  of  her  hierarchy,  the  Chris- 
tian church,  particularly  in  the  east,  appears  to 
have  conformed  very  much  to  this  model.  Before 
the  translation  of  the  seat  of  the  Roman  empire  to 
Constantinople,  the  church  had  the  three  Partri- 
archates  of  Rome,  Antioch,  and  Alexandria;  after 

hs 


ai 


104  THE  CANON  LAW. 

its  translation,  the  bishops  of  Constantinople  ac- 
quired importance ;  by  degrees  they  obtained  eccle- 
siastical  jurisdiction  over  Thrace,  Asia,  and  Pontus, 
and  were  elevated  to  the  rank  of  patriarch:  after- 
wards, the  same  rank  was  conferred  on  the  bishop 
of  Jerusalem :  and,  according  to  Mr-  Gibbon's  ob- 
servation, (vol.  6.  p.  378.),  the  Roman  bishop  wus 
always  respected  as  the  first  of  the  five  patriarchs. 
Thus,   speaking  generally,   the  patriarchs  corre- 
sponded  in  rank  with  the  prefects;  in  each  diocese 
there  was  a  primate ;    in  each  province,   one  or 
more  than  one  metropolitan;  imd  each  metropolitan 
had  under  him  a  certain    number  of  suffragan 
bishops.  Regular  funds,  proportioned  to  their  re- 
spective  ranks,  were  appropriated  for  their  support : 
except  in  cases  of  singular  enormity  they  were 
exempted  from  the  civil  jurisdiction  of  the  magis- 
trate ;  and,  in  many  other  important  articles,  a  dis- 
tinction between  the  clergy  and  the  laity,  wholly 
unknown  in  the  law  of  heathen  Rome,  was  ad- 
mitted  into  the  Codes  of  the  Cliristian  emperors.* 

•  Frederici  Sfianhemif.,  Geografi/na  Sacra,  Distributio  Dia- 
ceseon  et  Prm,inciarum,  inde  a  Temtionbua  Constantini  Magnt 
in  orbeutroque,  orientaU  et  occidcntaU;  inter  Ofiera  Omma, 
Lugduni  Batavorum,  fol.  1  vol.  75—204  ;  Bingham's  Anti- 
'i/uitiea  of  the  Christian  Church,  London,  1726.  foL  2  vol.  Hb. 
9.;  DuPin,de  Antigud  Eccleaix  Discifilind,  Par.  1686;    .'<■- 

trua  de  la  Marca,    Concordia   Sacerdotii  atque   Imjierii,  fol. 

Paria,  1704.  .IV.    THE 


I 


«'*^l<S-.i»r  *-MiJT;',W»;«VS»!<ia'^'' 


!«*5S5e.'#a6S'M''/sSg|Ks***  ~ 


THE  CANON  LAW. 


105 


loplc  ac- 
led  ecck- 
d  Pontus, 
ch:  after- 
he  bishop 
(bon's  ob- 
ishop  was 
patriarchs. 
:hs  corre- 
ch  diocese 
e,   one  or 
etropolitan 
suffragan 
3  their  re- 
r  support : 
they  were 
the  magis- 
cles,  a  dis- 
ity,  wholly 
e,  was  ad- 
smperors.* 

stributio  Dia- 
tantini  Magni 
Ofiera  Omniay 
igham'a  Anti- 
fol.  2  vol.  Hb. 
jr.  1686;  re- 
Imjierii,  fol. 

IV.  THE 


IV. 

THE  liberty  of  holding  ecclesiastical  assemblies 
was  one  of  the  most  important  privileges  of  the 
dignified  members  of  the  clergy.    Occasional  as- 
semblies were  convened  of  all  the  bishops  in  the 
christian  world,  or  of  all  the  bishops  within  the 
limits  of  a  patriarchate:    and,   generally   in   the 
spring  and  autumn  of  every  year,  the  metropolitan 
convened  the  bishops  of  his  province  to  debate  on 
its  religious  concerns.    From  Concilium,  which, 
among  the  Romans,  denoted  a  select  meeting  in 
contradistinction  to  Comitia,  which  they  used  to 
denote  general  meetings,  these  assemblies  received, 
in  the  Latin  church,  the  appellation  of  councils ; 
in  the  Greek  church  they  were  called  synods;  at 
a  subsequent  time,  the  word  council  still  retaining 
its  original  import,  the  word  synod  was  used,  in 
the  Latin  church,  to  denote  the  assembly  of   u 
bishop  and  his  clergy.    The  Scripture  is  the  first, 
the  decrees  of  the  councils  are  the  second  source, 
from    which  THE    MATERIALS  OF  THE 
CANON  LAW  are  drawn.    The  decrees   and 
decretals  of  the  popes  are  the  third;  the  works  of 
the  fathers  and  other  respectable  writers  are  the 
fourth.   By  the  decrees  of  the  popes  are  meant 
their  decrees  in  the  councils  held  by  them  in  Italy; 
the  decretals  are  their  answers  to  questions  pro- 
posed to  them  on  religious  subjects. 

V.  THOSE, 


m 


-Pts^^mtM^^^mmisiimi&m^'^i^is^&a^'^fi^^sm'^m"*^'^ 


106 


THE  CANON  LAW. 


V. 

THOSE,  who  profess  to  give  an  HISTORI- 
CAL ACCOUNT  OF  THE  CANON  LAW. 

divide  it  into  three  periods:  the  ancient,  the 
middle,  and  the  modern: — the  ancient,  begins  witl» 
the  first,  and  ends  with  the  eighth  century,  when 
Isidore  Mercator's  collection  of  canons  made  its 
appearance;  the  middle,  begins  with  that  century, 
and  ends  with  the  council  of  Pisa,  in  1409;  the 
modem,  begins  with  that  council,  and  extends  to 
the  present  time. 

V.  1. 

THE  ANCIENT  PART  OF  THE  HISTO-  Aftn 
RY  OF  THE  CANON  LAW  is  remarkable  for 
several  Collection  of  Canons. 

1.  Some  are  CANONS  OF  THE  GENERAL 
CHURCH. 

The  first  collection  of  these  canons  is  called 
the  Apostolic  Canons.  They  have  been  imputed  to 
the  apostles;  and  it  has  been  said,  that  St.  Clement, 
the  immediate  successor  of  St.  Peter,  was  the  col- 
lector  of  them.  If  the  apostles  had  really  pro- 
mulgated them,  it  is  difficult  to  assign  a  reason  for 
their  not  having  been  admitted  to  a  place  in  the 
writings  which  form  the  New  Testament;  but,  of 

the 


I 


"''■->■  ■  '■  «'^f».:Sif9m:\'H%V<*f "' 


""T* 


THE  CANON  LAW. 


107 


STORI- 
f  LAW, 

lent,  the 
gins  witl» 
ry,  when 
made  its 
century, 
409;  the 
(tends  to 


HISTO-  After 

kable  for 


NERAL 

is  called 
iputed  to 
Clement, 
is  the  col- 
;ally  pro- 
reason  for 
ice  in  the 
it;  but,  of 
the 


the  ancient  fathers,  St.  John  Damascene  alone  has  After 
done  them  that  honour.  From  their  being  omit- 
ted in  the  canon  of  the  New  Testament,  from 
the  universal  silence  of  the  fathers  of  the  three  first 
ages  respecting  them',  from  the  mention  in  them 
of  many  offices  and  customs,  which  there  is  every 
reason  to  suppose  of  a  later  origin,  from  no  ap- 
peals having  been  made  to  them  in  the  contro- 
versies which  arose  in  time  subscfjuent  to  them, 
and  on  which  their  language  is  decisive,  and  from 
no  mention  having  been  made  of  them  in  the  synod 
held  at  Rome  in  496,  which  mentions  all  the  writ- 
ings of  the  Old  and  New  Testament,  they  are 
now  considered  to  have  been  fabricated.  Bishop 
Beveredge,  who  has  published  them  with  learned 
notes,  supposes  they  were  framed  under  the  sanc- 
tion of  bishops,  who  held  the  sees  founded  by  the 
apostles,  and  that  they  were  collected  towards  the 
end  of  the  second  or  beginning  of  the  third  cen- 
tury'. The  first  regular  mention  of  them  is  found 
in  the  second  council  of  Constantinople. 

The  Greek  church,  at  least  since  the  synod  in 
Trullo,  in  692,  has  singularly  respected  them,  and 
considered  the  85  first  of  them  as  authentic:  the 
Latin  church  seems  to  have  admitted  the  50  first 
of  them.  They  were  first  printed  at  Venice  in 
1563,  in  4to,  and  have  often  been  reprinted.      -     200 

The  Apostolic  Constitutions  are  of  high  antiquity, 
have  been  much  interpolated,  and  are  of  no  au- 
thority. 


u? 


M 


mw 


•^  **i**«^'?  -.i-'-  .**«v*  ■ 


■m". 


log  Tin:  CANON  LAW 

thority.    It  is  supposed  that  they  first  appeared  inj,';;^;, 

the  fourth  eentury.  -  -  •  800 

2.  Hitherto,  the  canons  spoken  of  are  the  canons 
of  the  general  church :  there  also  are  CANONS  OF 
PARTICULAR  CHURCHES. 

In  respect  to  the  Greek  Church,  the  first  collec- 
tion of  canons  which  has  come  down  to  us  from  the 
Greek  church,  is  the  Codex  Ecclesia  Ortentalts.  It 
is  supposed  to  have  been  first  published  in         -      385 

This  collection  contains  165  canons:  20  of  them 
are  canons  of  the  general  council  of  Nice;  24  arc 
canons  of  the  council  of  Ancyra;  U,  are  of  the 
council  of  Neocesarsca;  20,  of  the  council  of  Gan- 
gris-  25  of  the  council  of  Antioch;  59,  of  the 
council  of  Laodicca;  and  three  of  the  first  council 
of  Constantinople.  The  council  of  Chalcedon  men- 
tions this  collection  with' approbation. 

The  second  collection  of  canons  of  the  Greek 
church  is,  the  Codex  Eccle,tce  Universal.         -         45 1 

It  comprises  the  canons  in  the  precedmg  collec- 
tion, with  the  addition  of  some  .niitted  canons  of  the 
council  of  Constantinople,  some  of  the  council  ol 
Ephesus,  and  some  of  the  council  of  Chalcedon. 

Both  these  collections  are  confined  to  the  canons 
of  the  councUs  of  the  orientiiU  churches;  but  they 

bv 


Tin:  CANON  LAW 


WJ 


pcarcd  in  ^^^ 
300 
\Q  canons 
ONHOF 


•St  colicc- 
i  from  the 
entalis.  It 
n         -      385 
0  of  them 
;;  24,  arc 
ire  of  the 
il  of  Gan- 
)9,  of  the 
•st  council 
edon  men- 


thc  Greek 

ing  coUec- 
nons  of  the 
council  of 
alcedon. 
the  canons 
s;  but  they 
by 


451 


hy   no   means    inchidc   all    the  canons  (jf  all  the  AOtr 
touiuilsofthosc  churches.  c  inst. 

About  the  middle  of  the  M\th  ccntur),  John, 
tlien  a  priest  of  Antioch,  afterwards  patriarcli  of 
Constantinople,  published  a  collection  of  the  Clitek 
canons,  digested  under  fifty  heads,  atxordinj^  to 
the  subjects  of  them.  He  afterwards  puhlisiud  an 
abridgment  oi'  it:  the  first  is  called  his  Cof/nfion  of 
Canons;  the  second  his  A«w<o-rw//»//.'  he  is  gene- 
rally called  Joannes  Scholasticns.         -  -  .'iGO 

We  know  little  more  of  the  canons  of  the  Greek 
church  till  the  Synod  in  Tntllo.  By  that  synod,  a 
code  was  formed  of  the  canons  framed  at  it,  of  those 
framed  at  the  synods  of  Carthage,  and  at  the  eoiuicil 
of  Constantinople,  held  by  Ntctarius,  ami  of  some 
writings  of  the  fathers.  To  those  were  added  the 
twenty-two  canons  of  the  second  council  of  Nice, 
and  the  fourth  council  of  Constantinople.         -  C\92 

Here,  before  the  schism,  which  separated  the 
Greek  from  the  Latin  church,  the  code  of  the 
Greek  canon  law  rested.  Under  Photius,  two  coun- 
cils  were  held  at  Constantinople :  the  canons  of  those 
councils  were  received  by  the  schismatic  churches 
of  the  east,  and  were  published  by  Photius  in  his 
JVomo-Canon,  or  modern  collection  of  canons,  in      °"'' 

With  the  Commentgries  of  Balsamon,  Zonuras^ 
and  Aristenus^  and  other  curious  ai  tides,  and  with 
a  learned  preface,  all  thest;  collections  of  canons 

R  were 


'-'T?>e«6!*JB9«W«Wt'««*tw»''»-''  •  ■ 


# 


IIQ  THK  CANON  LAW 

wore   published,   at  Oxford,   by  Dr.  BevcrcdRC,  Jit-^ 
aluruards  Bishop  ol   St.  Asaph,  under  the  tule, 
♦♦  PiimU'ctiC   Canomtm   Sanctorum  J/mtnhrum    ft 
•'  Cnuciliorum   nb  Ecclesid    Gra-cd    nrt'ptorum.'' 
«'  'J'hose,"  says  Van  Espen,  "  who  will  read  with 
"  attention,  the  notes  of  the   learned  editor,  will 
"  find  much  very  learned  exposition  of  the  canon 
•♦  law,  and  much  instructive  matter  on  other  sub- 
»' jects,  connected  with  the  learning  of  the  canons." 
"  Bishop   Beveredge's  works,"  says  L'Advocat, 
♦*  are  written  with  so  muc  h  dignity,  majesty,  learn- 
•'  ing,  and  modesty,  that  he  is  thought,  with  reason, 
••  to  be  one  of  the  greatest  and  most  learned  men 
♦'  whom  England  has  produced.  An  epistolary  cor- 
«*  respondence  was  carried  on  between  him  and 
"  Bossuet." 

.1.  In  the  LATIN  CHURCH,  frequent  mention 
is  made  of  the  Vetus  Canonum  Latinorum  Edith.  It 
was  superseded  by  the  collection  made  by  Diony- 
siusExignus,  about  the  beginning  of  the  sixth  cen- 
tury.  That  collection  was  afterwards  enlarged  by 
the  decrees  of  Pope  Symir- "hus,  Pope  Hormisdas, 
and  Pope  Gregory  the  Second.  This  collection  was 
of  great  authority  both  in  the  Greek  and  the  Latin 

churches. 

4  Other  Churches  had  their  Collections  of 
Canons.  The  CHURCH  OF  AFRICA  had 
hers:  ihtBreviatio  Canonum  of  Fulgentius  Ferran- 
(ItiSy  and  the  Breviar'tum  and  Concordia  Canonum  of 

Cresconius  are  added  to  it. 

The 


-TtisT'^r-^i^^s^Br^w^^^^'i®®" 


fS^^m^msssM^^s^f^'^^^^^^^^ 


THE  CANON  LAW. 


Ill 


vcrcdffc,  AfW' 

.  .      CliriX 

the  title, 
hntm   ft 

rtatl  with 
itor,  will 
the  canon 
ither  sub- 
cunoiiii." 
'Advocat, 
ity,  learn - 
th  reason, 
rned  men 
;olary  cor- 
[  him  and 

it  mention 
J  Editio.  It 
by  Diony- 
:  sixth  cen- 
nlarged  by 
[lormisdas, 
lection  was 
i  the  Latin 

lections  of 
RICJ  had 
ius  Ferrari- 
Canonum  of 

The 


The  CHURCH  OF  SP.IIX  also  had  her  col-  Att.. 

Clirisf 

lection  of  canons.  It  is  attributed  to  St.  Isidore  the 
Bishop  of  Seville ;  from  his  diocese,  he  is  fre(|uently 
distinguished  by  the  appellation  of  Hispalensis. 

In  790,  Pope  Adrian  presented  Charlemagne 
with  a  collection  of  canons.  It  was  composed  of 
the  collection  of  Dionysius  Exiguus,  and  the  epis- 
tles of  several  popes. 

At  the  council  held  at  Canterbury  in  873,  a  book 
of  canons  was  produced  and  approved  of;  but  we  do 
not  know  what  canons  it  contained. 

V.  2. 

1.  The  MIDDLE  PERIOD  OF  THE  HIS- 
TORY  OF  THE  CANON  LAW  commences 
with  the  ninth  century,  at  the  beginning  of  which,  or 
towards  the  end  of  the  preceding  century,  t/w  col- 
lection of  Isidore  Peccator  or  Mercator  probably 
made  its  appearance.         -  -  -  750 

It  was  brought  from  Spain  into  Germany  by 
Riculphus,  the  bishop  of  Mayence.  Who  the 
compiler  of  it  was,  and  why  he  assumed  the  name 
of  Peccator  or  Mercator,  are  merely  matters  of 
conjecture.  It  sets  out  with  describing  the  manner 
in  which  a  council  should  be  held ;  then,  the  fifty 
first  of  the  canons  of  the  apostles  follow:  "  De- 
"  inde,"  says  the  author,  *'  quarumdam  cpistolarum 

"  decrcta 


!flS« 


""'^fflSH^ 


-mstiss^ 


'i:ss*»»a!M^ti»^a*%'^'93T3ft:nwisr*;."^ijffiji'^^^^^ 


■!  limp —-HI, 


il 


IJ2  THE  CANON  LAW. 

"dccrcta  virorum  apostolicorum   inseruimus,  idAfte>^ 
"  est,  Clementis,  Anacleti,  Evaristi,  et  c^eterorum 
"apostolicorum,  quas    potuimus  hactenus  repe- 
"  lire,  epistolas usque  ad  S}  vestrem  Papam." 

These  are  the  celebrated  decretals,  concerning 
which,  since  the  beginning  of  the  sixteenth  century, 
there  has  been  so  much  dispute  among  the  learned. 
They  seem  to  kive  made  their  first  appearance  m 
Germany:  afterwards,  to  have  been  received  m 
France;  and,  bv  degrees,  to  have  been  received  m 
everv  part  of  the  western  church.  For  seven  cen- 
turies after  their  first  appearance,  neither  their  au- 
thenticity  nor  their  authority  appears  to  have  been 

questioned.  .  mi 

They  were  first  attacked  by  MarciUus  of  Padua, 
then  bv  Cardinal  Nicholas  of  Cusa,  during  the 
Council  of  Basil,  and  afterwards  by  Erasmus.  In 
the  celebrated  Centuriators  of  Magdeburgh,  in 
Blondel,  and,  lastly,  in  Van  Espen,  they  have  met 
with  most  powerful  adversaries:  in  the  author  of 
the  celebrated  treatise,  "  Quis  est  Petrus,"  they 
have  found  both  a  zealous  and  an  able  advocate: 
but  he  seems  to  concede,  that  so  much  spunous- 
ness  is  proved  on  them  as  to  make  them,  when  they 
standalone,  of  no  authority. 

They   are   followed    by  what    are   called    the 
Capitularies  of  Adrian.         -  -         ^ "       .     ^^^ 

The  tenth  century  was  famous  for  the  Collection  ^^^ 
qfRhegihon,AbhotofPrumia.  -  - 


■fimmi^^mcmss^fi^w^^^^si^^f^*^''^^^^^^^^^ 


THE  CANON  LAW. 


11: 


mUS,    idAftei 

Christ 

iterorum 
IS  repe- 
ti." 

ncerning 
century, 
;  learned, 
arance  in 
reived  in 
ceived  in 
:ven  cen- 
their  au- 
lavc  been 

Df  Padua, 
aring  the 
smus.  In 
urgh,  in 
have  met 
author  of 
us,"  they 
advocate : 
spurious- 
when  they 


called    the 


845 


Collection 


906 


The 


The  eleventh,  for  the  collection  of  Burchardus,  After 

'  Christ. 

bishop  of  Wormes,  entitled  Magnum  Decretorum 

seu  Canonum  Folumen.  •  -  -^       1000 

The  twelfth,  for  the  collection  of  St.  Ivo,  the 
good  lawyer.  Two  works  are  attributed  to  him : 
the  Decretum  Canonum,  certahily  belongs  to  him ; 
his  right  to  the  second,  the  Panomia,  is  uncertain.    1 100 

2.  We  now  come  to  the  celebrated  Decretum 
Gratiani,  or  the  Concordia  Discordantium  Canonum. 
Gratian  was  a  Benedictine  monk,  in  a  monastery 
of  Bologna.  His  work  is  an  epitome  of  Canon 
Law,  drawn  from  the  decrees  of  councils,  the  letters 
of  pontiffs,  and  the  writings  of  ancient  doctors. 
Pope  Eugenius  the  third  was  extremely  satisfied 
with  the  work :  and  it  was  soon  adopted  in  every 
part  of  the  western  church.  -  -  1150 

It  is  divided  into  three  parts:  the  first  contains 
101  distinctions  or  heads,  and  treats  of  the  origin 
and  different  kinds  of  law,  and  particularly  of  the 
sources  of  ecclesiastical  law,  of  persons  in  holy 
orders,  and  the  hierarchy.  The  second  contains 
36  causes,  as  they  are  called,  or  particular  cases, 
on  which  questions  of  difficulty  arise:  the  third  is 
divided  into  five  distinctions,  and  contains  a  col- 
lection of  canons  relating  to  the  consecration  of 
churches,  the  sacraments,  and  the  celebration  of 
the  divine  office.  The  whole  contains  about 
3000  canons  or  capitularies.   Some    are    entitled 

Paleoe, 


■  .s«s#»^Maci  ^'i^^ws&nmt^mm!&»iis^sS^^.W!as^!!i^&msi^^^!^^«i^si^^ 


r" 


114 


THE  CANON  LAW. 


Palcoe,  the  meaning  of  which  word  is  not  yet  as- 
certained  by  the  learned. 

This  celebrated  collection  abounds  with  errors. 
Towards  the  middle  of  the  sixteenth  century,  An- 
tonius  Demochares  and  Antonius  Contius,  the 
former  a  divine,  the  latter  a  canonist,  published  a 
corrected  edition  of  it. 

A  more  correct  edition  of  it  we  owe  to  the 
council  of  Trent.  By  a  decree  of  that  council,  it 
was  ordered  that  correct  editions  of  missals,  bre- 
viaries, and  otacr  books  relating  to  ecclesiitstical 
matters  should  be  published. 

In  consequence  of  this  decree,  pope  Pius  the 
fourth  engaged  several  learned  men  in  the  correc- 
tion of  the  decree  of  Giatian.  The  work  was  con- 
tinued through  the  pontificate  of  Pius  the  fifth. 
Gregory  the  thirteenth,  the  immediate  successor 
of  Pius  the  fifth,  when  a  cardinal,  had  been  em- 
ployed on  the  work:  under  his  auspices,  it  was 
finally  published  about  the  year  -  -        1580 

Several  faulty  passages  still  remain  in  the  work.     - 
Many  of  them  have  been  pointed  out  by  Antonius 
Augustinus,  the  Archbishop  of  Tairagon,  in  his 
learned  and  entertaining  dialogues  on  the  Emenda- 
tion of  Gratian. 

Such  is  the  celebrated  decree  of  Gratian,  which 
for  800  years,  has,  in  every  country  in  Christendom, 
been  considered  a  valuable  repository  of  Canon 
I,.,^v.  —To  the  compilations  of  Isidore  and  Gratian, 

onfi 


**iii. 


THE  CANON  LAW. 


115 


Dt  yet  as-  Afler 
Christ 

th  errors, 
tury,  An- 
itius,  the 
iblished  a 

i^e  to  the 
:ouncil,  it 
isals,  bre- 
:lesijistical 

Pius  the 
le  correc- 

was  con- 

the  fiftli. 

successor 
been  ern- 
es, it  was 


the  work. 

Antonius 

;on,   in  his 

;  Emenda- 

ian,  which 

ristendom, 

of  Canon 

id  Gratian, 

one 


1580 


one  of  the  greatest  misfortunes  of  the  church,  the  Aftei^^ 
claim  of  the  popes  to  temporal  power  by  divine 
right,  may  in  some  measure  be  attributed.  That 
a  claim  so  unfounded  and  so  impious,  so  detrimen- 
tal to  religion,  and  so  hostile  to  the  peace  of  the 
world,  should  have  been  made,  is  strange — stranger 
yet,  is  the  success  it  met  with. 

It  was  soon  observed,  that  the  author  had  omit- 
ted in  his  collection  several  important  arti  s. 
This  gave  rise  to  subsequent  collections,  i  ne 
principal  of  them  are  the  Breviari  hi  of  Bernardus 
Papiensis,  and  the  Collections  of  Jc'iomics  Galensis 
and  Peter  Bentfventanus.  Of  these,  the  last  only  was 
formally  approved  by  the  see  of  Rome.  Pope 
Innocent  the  third  published  a  collection  of  his 
own  decretal  epistles.  His  example  was  followed  by 
Honorius  the  third,  his  immediate  successor. 

From  these  five  collections,  and  from  some  de- 
cretals of  his  own,  pope  Gregory  the  ninth  com- 
missioned St.  Raymond  of  Pennafort,  a  Domini- 
can, to  form  a  new  collection  of  canons.  He 
executed  the  work  greatly  to  the  satisfaction  of 
his  holiness;  and,  under  his  auspices,  it  was  pub- 
lished about  the  year  1230,  under  the  title  Libri 
qu'mque  Decretaliiim  Gregorii  Noni.  It  contains  all 
the  decrees  of  the  council  of  Lateran,  and  the  de- 
cisions of  many  popes  on  particular  cases.  It  is 
divided  into  five  books.  -  -  1230 

A  further  addition  to  the  code  of  Canon  Law 
was  made  bj'  pope  Boniface  the   Kighth.  It  con- 
tains 


•  ~iwm«!>(i%s-,>wa8«a-#«»fe»«ww?w»w»«^ss*«sa™«sw^!nsEP«E^^ 


Uj^  THE  CANON  LAW. 

tains  the  decretals  of  all  the  popes,  subsequent  to  Aik.^ 
Gregory  the  Ninth,  and  the  decretals  of  that  pope. 
It  is  called  Liber   Sextus  Decretalium,  and  was 

published  in  -  - 

On  account  of  the  differences  between  pope  Bo- 
niface  and  Philip  the  Fair,  it  was  not  received  in 

France. 

The  Liber  Sextus  Decretalium  is  followed  by 
the  collection,  called  sometimes  Liber  Septimus 
Decretalium,  and  sometimes  dementis  Papa;  Con- 
stitutiones.  It  was  framed  by  pope  Clement  the 
Fil:h;  and  consists  of  his  own  decretals,  particularly 
the  canons  of  the  council  of  Vienne,  at  which  he 
presided.  He  promulgated  it  in  -  -  1313 

The  last  article  in  the  code  of  Canon  Law  is  the 
Extravagautes.  At  first,  every  collection  of  Canoii 
Law,  except  the  decree  of  Gratian,  was  ranked 
among  the  Extravagantes.  In  the  course  of  time, 
that  name  remained  only  to  the  collection  of  which 
we  are  now  speaking.  It  is  divided  into  two  ar- 
tides,  the  Extravagantes  Joannis  XXIL,  or  the 
decretals  of  that  pope,  published  by  him  about  the 


year 


1340 


And  the  Extravagantes  Communes,  consisting  ot 
the  decrees  of  popes  from  Urban  the  Sixth  to  Sixtus 
the  Fourth.  It  was  published  about  the  year       -      1483 

Neither  of  them  is  considered  to  be  of  autho- 
rity. The  first,  (published  under  the  name  of 
pope  John  the  twenty-second,)  was  never 
'    ^  formally 


«•" 


•mmf 


THE  CANON  LAW. 


117 


quent  toAiiei 

^  Christ. 

[lat  pope, 
and  was 


pope 


Bo- 


131;5 


:,eived  in 

owed  by 
Septimus 
apa  Con- 
ment  the 
Tticulurly 
which  he 

^aw  is  the 
of  Canon 
js  ranked 
;  of  time, 
I  of  which 

0  two  ar- 
/.,  or  the 

about  the 

1340 
nsisting  of 

1  to  Sixtus 

ear       -      148o 

of  autho- 

name   of 

'as     never 

formally 


formally  approved  of  or  sanctioned  by  him,  and  the  After 
author  of  the  latter  collection  is  wholly  unknown.     ^*'"'*- 

A  collection  by  Peter  Matthtei  was  published  in    1590 

In  some  modern  editions  of  the  Corpus  Juris 
Canonici,  it  is  inserted  under  the  title  of  the  Liber 
Septimus  Decretalium. 

With  these,  what  is  called  the  Corpus  Juris 
Canonici  and  the  middle  period  of  the  history  of  the 
Canon  Law  closes. 

But  mention  sWuld  also  be  made  of  the  Insti- 
tutioncs  Juris  Canonici,  a  compendium  of  Canon 
Law,  published  by  Lancellot,  a  lawyer  of  Perugium, 
in  1563.  By  the  direction  of  pope  Pius  the  fifth, 
but  without  any  confirmation  of  it  by  him,  it  was 
subjoined  to  the  Corpus  Juris  Canonici,  and  has 
been  published  with  it.  "  The  Roman  pontiffs,*' 
says  Arthur  Duck,  (de  Auctoritate  Juris  Civilis, 
lib.  1.  c.  6.  tit.  8.)  "  effected  that,  in  the  church, 
"  which  Justinian  effected  in  the  Roman  empire : 
"  they  caused  Gratian's  Decree  to  be  published  itt 
"  imitation  of  the  Pandects;  the  Decretals,  in 
•'  imitation  of  the  Code;  the  Clementinae  and 
"  Extravagantes,  in  imitation  of  the  Novells;  and 
"  to  perfect  the  work,  Paul  the  Fourth  ordered 
"  Lancellot  to  compose  the  Institutes;  and  under 
"  Gregory  the  Thirteenth,  they  were  published 
"  at  Rome,  and  added  to  the  Corpus  Juris  Ca- 
"  nonici."   In  the  edition   of  the  Institutifxis  of 

S  Lancellot, 


^^:^m^'~ 


5*«aSite**»«*9«-,#tftSS«tt,^^te*rv»ft^€r<,.it:.Ja^^=^^ 


118 


THE  CANON  LAW 


Lancellot,  published  in  1584,  and  in  several  sub- 
sequent  editions,  it  is  accompanied  with  a  perpetual 
closs,  and  followed  by  a  commentary,  written  by 
Lancellot,  which  gives  an  account  of  the  rise  and 
progress  of  the  work;  and  by  a  comparison  ot  the 
Civil  and  Canon  Law,  also  written  by  him. 

„■    .  .        V.  3. 

THE  MODERN  PERIOD  OF  THE  CA- 
NON  Z*///r  begins  with  the  Council  of  Pisa,  and 
extends  to  the  present  time. 

The  principal  articles  of  canonical  learning, 
which  have  appeared  during  this  jjeriod,  are,      . 

1  The  various  Transactions  [e]  and  Concordats  be- 
tweensovereigns,  and  the  See  of  Borne' ;-'^^nccmcl 

and  impartial  history  of  them  is  wanting:  the  i«i- 
pal  arrangements  wiUi  Bonaparte  would  not  be  the 
least  curious  parts  of  such  a  work. 

2.  The  Councils  of  Basil,  Fisu,  Constance,  and 

Trent.  i  '      *  ••? 

Separate  histories  have  been  written  of  the 
councils  of  Basil,  Pisa,  and  Constanqe,  by  M. 
L'Enfant,  a  Lutheran  minister:  that  of  the  coun- 
cil of  Constance  is  the  best  written;  it  contains 
an  account  of  a  fact  of  importance  to  the  English 
nation,  but  not  generally  mentioned  by  her  ns- 
torians  —that  the  French  ambassadors  contended, 
before  'the  council  of  Constance,  tli^.t  Christendom 

^e^  The  word  Tramaction  here  means  an  agreement  in 
uhich  controvened  matters  are  finally  settled;  it  is  a techni^ 
ral  law  term  in  the  civil  law,  synonymous  to  the  word>.  at 
common  law.  Concordat  is  a  word  of  similar  import;  both 
ancan  a  settlement  or  compromise,^««/«co«corrf/«,  2  BUckst. 

Com.  351.  was 


■-wmrtm 


^^smm^^s^^^ 


THE  CANON  LAW. 


119 


'eral  sub- 
perpetual 
vritten  by 
rise  and 
ion  of  the 


"HE  CA- 
•  Pisa,  and 

learning, 

are, 

icordatsbe- 
-a  succinct 
g:  tl'.e  pu- 

uot  be  the 

stance,  and 

ten  of  the 
[;e,   by  M. 

the  coun- 
it  contains 
he  English 
by  her  his- 

contended, 
;hristendom 

agreement  in 
it  is  a  techni- 

le  word, fine  at 
import;  both 

rrf/'«,2  Blackst. 


nas  divided  into  the  four  great  nations  of  Europe, 
Italy,  Germany,  France,  and  Spain;  and  that  all 
the   lesser  nations,  among  which  they   reckoned 
England,  were  comprehended  under  one  or  other 
of  them ;  but  the  English  asserted,  and  their  claim 
was  allowed  by  the  council,  that  the  British  Islands 
should  be  considered  a  fifth  and  co-ordinate  na- 
tion, and  entitled  to  an  equal  vote  with  the  others. 
— In  the    different    atmospheres  of  Venice  and 
Rome,  the  history  of  the  council  of  Trent  has  been 
written  by  the  celebrated  Fni  Paolo,  (the  translation 
of  whose  work,  with  notes  by  Dr.  Courayer,  is 
more  valued  than  the  oiiginal),  and  by  cardinal 
Pallavicini.    The   Cardinal   does   not    dissemble, 
that  some  of  the  <ieliber;:tions  of  the  council  were 
attended  with  intrigues  and  passion,  and  that  their 
effects  were  visible  in   various   incidents   of   the 
council ;  but  he  contends,  that  there  was  an  una- 
nimity in  all  points  which  related  to  doctrine,  or 
the  reformation  of  manners:  and   Dr.  Courayer, 
in  the  Preface  tt  his  translation,  concedes,  "  that, 
"  in  what  re^rded  discipline,  several  excellent  regu- 
"  lations  were  made  according  to  the  ancient  spirit 
"of  the  church;"  and    observes,  that,  "though 
"  all  the  disorders  were  not  reformed  by  the  coun- 
"  cil,  yet,  if  we  set  aside  prejudice,  we  may  with 
"  truth  acknowledge,  they  are  infinitely  less  than 
'*  they  were  before."    The    classical   purity    and 
severe  simplicity  of  the  style  in  which  the  decrees 
of  the  council  are  expressed,  are  universally  ad- 

mired, 


m&M0^'^- 


-?*e««t  V^-Witwif^^^J*^  ^K?t-»r*«^^,-frt^^ 


lao 


THE  CANON  LAW. 


mired,  and  are  greatly  superior  to  the  language  of 
any  part  of  Justinian's  law.    In  what  concerns 
faith  or  morals,  the  decrees  of  the  council  of  Trent 
have  been  received,  without  any  restriction,  by 
every  Roman  Catholic  kingdom:  all  its  decrees 
have  been  received  by  the  Empire,  Portugal,  the 
Venetians,  and  the  Duke  of  Savoy,  without  any 
express  limitation;  they  have  been  received  by  the 
Spaniards,  Neapolitans,  and  Sicilians,  with  a  cau- 
tion, as  to  such  points  of  discipline  as  might  be  de- 
rogatory to  their  respective  sovereignties:  but  the 
council  -was  never  published  in  France.  No  at- 
tempt has  ever  been  made  to  introduce  it  into 
England.    Pope  Pius  the  Fourth  sent  the  acts  of 
the  council  to  Mary  Queen  of  Scots,  with  a  letter 
dated  the  13th  of  June  1564,  urging  her  to  have 
the  decrees  of  the  council  published  in  her  do- 
minions; but  nothing  appears  to  have  been  done 
in  consequence  of  it.  See  Histoire  de  la  Reception 
du  Concile  de  Trente,  dans  les  differem  Etata  Ca- 
tholiques;  Paris,  2  vol.  8vo,  1766. 

3.  The  Bul/arium,  or  the  collection!  which  have 
been  made  of  the  Bulls  of  Popes :  the  best  of  these 
collections  is  that  printed  at  Luxenburgh  or  Ge- 
neva in  1771.  It  extends  to  the  year  1753. 

4.  To  these  are  to  be  added,  Regula  CanceUarite 
Romarue,  or  the  Rules  of  the  Roman  Chancery, 
a  court  instituted  by  the  see  of  Rome,  for  pre- 
paring and  transmitting  the  receipts  and  letters  of 
the  pope;  the  sentences  and  ordinances  of  the  various 

congregations 


s^Sf:«««^PiS^^^  ■ 


guage  of 
concerns 
of  Trent 
ction,  by 
\  decrees 
ugal,  the 
thout  any 
ed  by  the 
ith  a  cau- 
;ht  be  de- 
:  but  the 
.  No  at- 
ce  it  into 
tie  acts  of 
h  a  letter 
:r  to  have 
I  her  do- 
)een  done 
Reception 
Etata  Ca- 

hich  have 
St  of  these 
gh  or  Ge- 

hncellari^ 
Chancery, 
e,  for  pre- 
1  letters  of 
the  various 
\gregations 


THE  CANON  LAW. 


121 


wngregationa  of  cardinals  at  Rome;  and  the  de- 
cisions of  the  Rota,  the  supreme  tribunal  of  justice 
at  Rome,  both  for  its  spiritual  and  its  temporal 
concerns. 

5.  These  complete  the  body  of  the  Canon  Law. — 
It  should  be  observed,  that,  in  addition  to  it,  every 
nation  in  Christendom  has  its  own  national  Canon 
Law,  composed  of  Legatine,  Provincial,  and  other 
Ecclesiastical  Constitutions.  The  Legatine  Constitu- 
tions of  England  are  the  ecclesiastical  laws  enacted 
in  national  synods,  held  under  the  cardinals  Otho 
;uid  Othobon,  in  the  reign  of  Henry  the  Third. 
The  Provincial  Constitutions  are  principally  the 
decrees  of  provincial  synods,  held  under  divers 
Archbishops  of  Canterbury,  and  adopted  by  the 
province  of  York,  in  the  reign  of  Henry  the  Sixth. 
"  At  the  dav/n  of  the  Reformation,"  (Sir  William 
Blacks' one,  Comm.  1  vol.  Inst.  s.  3.),  "  in  the 
"  reign  of  King  Henry  VIII.  it  was  enacted  in  par- 
**  liament  that  a  review  should  be  had  of  the  Canon 
"  Law ;  and,  till  such  review  should  be  made,  all 
"  canons,  constitutions,  ordinances,  and  synodals 
'•  provincial,  being  then  already  made,  and  not  re- 
'*  pugnant  to  the  law  of  the  land,  or  the  king's 
'*  prerogative,  should  still  be  used  and  executed. 
"  And,  as  no  such  review  has  yet  been  perfected, 
"  upon  this  statute  now  depends'  the  authori^  of 
'*  the  Canon  Law  in  England. 

"  As  for  the  canons  enacted  by  the  clergy  under 
"  James  J.  in  the  year  1603,  and  never  confirmed 


"in 


/-I 


!tf»«e»t«f«.Ai».!^VitsMa-Sc^««*&i>iei*-ai!#aip!m^ 


122 


TIIK  CANON  LAW. 


«  in  parliament,  it  has  been  solemnly  adjudged 
"  upon  the  principles  of  law  and  the  constitution, 
"  that  where  they  are  not  merely  declaratory  of 
♦'  the  ancient  Canon  Law,  but  are  introductory  of 
"  new  regulations,  they  do  not  bind  the  laity ; 
"  whatever  regard  the  clergy  may  think  proper  to 
"pay  them."  »  .  i.  ^    %. 


'U  '>< 


VI. 


',»',s"rii^j{i 


With  respect  to  the  AUTHORITY  OF  THE 
CANON  LAW,  from  which,  in  the  present  case, 
the  part  of  it  anterior  to  Gratian's  decree,  and  sub- 
sequent to  the  Extravaguntes  Communes,  must  be 
excluded;  it  is  composed  of  texts  out  of  the  Bible, 
passages  from  the  writings  of  the  fathers,  the  canons 
of  genera!  and  particular  councils,  the  decrees  and 
rescripts  of  popes,  and  various  other  insertions  and 
extracts.  In  each  of  these  particulars,  it  possesses  all 
the  authority,  which  the  extract  itself  has;  besides 
which,  it  possesses  all  the  weight  and  authority, 
which  it  has  acquired,  by  its  having  been  so  much 
adopted  by  courts,  appealed  to  in  disputes,  taught  in 
the  schools,  and  praised  and  commented  upon  by  the 
learned  men  of  every  state  of  Christendom.   With 
more  or  less  limitation,  it  forms  the  basis  of  the  ec- 
clesiastical law  of  every  country,  where  the  Roman 

Catholic  religion  is  professed;  and,  speaking  gene- 

rallv, 


-yi^'^^s 


THE  CANON  LAW. 


lS.'i 


idjiidgcd 
lititution, 
ratory  of 
Lictory  of 
le  laity ; 
proper  to 


DF  THE 

sent  case, 
,  and  sub- 
i,  must  be 
the  Bible, 
;he  canons 
crees  and 
rtions  and 
)ssesses  all 
i;  besides 
authority, 
1  so  much 
i,  taught  in 
ipon  by  the 
)m.   With 
s  of  the  ec- 
the  Roman 
king  gene- 
rallv, 


rally,  in  protcstant  countries,  it  has  t»-    force  of  law, 
when  it  is  not  repugnant  to  the  law  of  the  land.* 

•  The  works,  principally  used  in  framing  this  account  arc, 
Fieury'fi  Irmtiiuliont,  tin  Droit  Mrclfiiia»ti(/ue  i  hU  Diacour* 
Hur  I'HiHtoirf  Kcclmiaaliijue;  bUlio/i  (iibaott'ii  teamed  but  very 
high-church  Preface  to  hit  Coder  Juris  Eccleaiattici  jIngH- 
cuni  s  lord  Hardwicke'a  argument  in  the  cane  qf  Mtddleton  v. 
Crq/it,  2  ^tt.  650;  Pehem'a  Pralectionea  in  Jua  Ecclena»ti- 
cum  Univertum,  Luvanii,  4  vol.  Hvo,  1787;  Boehner,  Jut 
Kccleaiatticum  Protentuntium  Hultt  Mugdeburgict,  6  voi.  4to^ 
1756;  Gerhard  Von  Afaalricht  Iliatoria  Juria  Eccleaiaatici  et 
Pontijicii,  Duiaburgii  ad  Phenum,  Oct.  1676;  Doujat'a  Ilia- 
toire  du  Droit  Canoni(/ue,  Paria,  8vo,  1677;  Van  Pa/ien'a 
Jua  Krcleaiaaticum  Univeraum,  I.ovanii,  6  vol.  fol.  1753,  a 
work,  which,  for  depth  and  extent  of  research,  clearness  of 
method,  and  perapicuity  of  style,  equals  any  work  of  ju- 
risprudence which  has  issued  from  the  press ;  but  which,  in 
some  places,  where  the  author's  dreary  Jansenism  prevails, 
must  be  read  with  disgust : — a  methodical  and  learned  work 
with  this  tit;e,  "  Quia  eat  Petrua?  Seu  Qualia  Petri  Prima- 
"  tua?  lAber  Theologico-Canonico  Catho/icua.  Editio  aecunda, 
"  correctior  et  emendatior,  cum  ^fi/irobatione,  Hatiabonae, 
"  1791  ;".the  ablest  work,  in  support  of  the  papal  preroga- 
tives against  the  doctrines  of  the  Sorbonnc,  which  has  come 
to  the  writer's  knowledge.  His  account  of  Isidore's  Decre- 
tals is  particularly  interesting.  The  Religionia  Xaturalia  et 
Rn>elatt  Prind/iia  of  Doctor  Nooke,  Paria,  3  vola.  8vo, 
1774;  the  third  volume  of  this  work  is,  perhaps,  the  best 
treatise  extant,  on  the  ecclesiastical  polity  of  the  church,  ac- 
cording to  the  notions  of  the  Sorbonnists.  It  deserves  to  be 
more  known  in  this  count ly  ;  it  must  have  given  the  Fiencli 
divines  an  high  opinion  of  the  perspicuity  and  preribjon  of 
English  writing. 


''lr^^-•i^•<t\>ml»>^|u:r-^4iy.^i,l*>H^•>^,^~>*ln^n^^ 


APPENDIX. 

NOTE  I. 

The  exclusive  dominion  and  property 

OF  THE  BRITISH  SEAS  U  one  of  the  most  splendid  and 
v«luabl0  prerogatires  of  the  Crown  of  England^The  fol- 
lowing account  of  it  is  token  from  a  note  to  that  part  of  the 
fourteenth  edlUon  of  Coke  upon  Uttleton,  which  was  executed 
by  the  present  writer. 

«  The  Jus  MAHts  of  the  king  may  be  considered  under 
the  two-fold  distinction,  of  the  narA<  of  jurisdiction,  ytYach.  he 
exercises  by  his  admiral,  ond  hi,  right  qffirofiriety  or  own- 

eriUfi. 

Wtrn  MBSPBcr  ro  rug  mcHt  or  sfURiaotcrios,  the  sub- 
ject is  elaborately  discussed  by  Mr.  Selden,  in  his  Mare  Clau- 
,um,  a  noble  exer  ion  of  a  vigorous  mind,  fraught  with  pro- 
found and   extensive  erudidon.    In  the  first  part  of  it,  he 
attempts  to  prove,  that  the  sea  is  susceptible  of  separate 
dominion.  In  Uas,  he  has  to  combat  the  opposite  opirion  of 
almost  all  civilians,  and  particularly  the  celebrated  decla- 
ration  ofoneoftheAntonines,(L.  9.  D.  De  Lege  Rhodift) 
«  Ego   (juidem  mundi  dominut,  lex    autem    nuiris,    tsV."  by 
which  the  emperor  has  been  generally  considered  to  have 
<\h  .Aimed  any  right  to  the  dominion  of  the  sea.  For  a  dif- 
ferent interpretation  of  this  law,  Mr.  Selden  argues  witii 
great  ingenuity.    In  this,  he  is  followed,  in  some  measure, 

bv 


•  :3;^jfef  ;;5Jj 


^g^m'^^^msm^^i^-^ 


AFPKNUIX. 


'.25 


3PERTY 
Icndid  and 
-The  fol- 
lart  of  the 
I  executed 

ired  under 
,  which  he 
ty  or  own- 

Sf  the  sub- 
Mare  Clau- 
i  with  pro- 
t  of  it,  he 
of  tepamte 
opirion  of 
ated  decla- 
re KhodiJL) 

red  to  have 
,  For  a  dif- 
argues  with 
ne  measure, 
by 


l>y  Byiikershoek,  in  his  ircutiHc  I)r  Lrgr  Hhodid  <le  Jaic-. 
Liber  fiingularin,  in  tlic  3d  vol.  of  the  edition  of  his  works  pub- 
lisl.cd  by  \icut,  Col.  Alio!).  1761.   Mr.  HcUlcn,  in  the  second 
part  of  bin  work,  attempts  to  shew,  thai  in  every  period  oftbc 
British  History,  the  kinjjs  of  Great  Britain  have  cnju^od  the 
exclusive  dominion  and  prop- rty  of  the  British  seas,  in  the 
larffcst  extent  of  those  words,  both  as  to  tlie  pussaj^e  through 
and  the  fishinK  within  theni.    He  treats  his  suliject  metho- 
dically, and  supports  his  position  with  the  greatest  learning 
and  inf;cnuity.    'I'ho  reader  will  probably  feci  some  degree 
of  prepossession  against  the  extent  of  i  his  claim;  but  he  will 
find  it  supported  by  a  lonjr  and  forcible  scries  of  arguments, 
not  only  from  prescription,  from  history,  from  the  common 
law,  aiid  the  public  records  t,i  this  country,  but  even  from 
the  treaties  and  acknowledgments  of  other  nations.  Here  he 
is  opposed  by  Byiikershoek,  in  his  Dissertatlo  de  Dominio 
Mari  i,  also  published  in  the  second  edition  of  his  works.    But 
it  will  be  a  great  satisfaction  to  the  English  reader  to  find, 
how  much  of  the  general  argument  used  by  Mr.  Selden,  is 
conceded  to  him  by  Ijynkershoek.  Even  on  the  most  impor- 
timt  part  of  the  argument,  the  acknowledgment  of  the  right 
by  foreign  princes,   Bynkershoek  makes  him  considerable 
concessionr> :  «'  Plus  momenti,"  says  he,  "  adferre  videntur 
"  gentium  testinumia,  quae  illud  Anglorum  imperium  ag- 
«  novcre.    De    cot\fessionihus    loquor  non  injuria  extortis, 
"  sed    libcrc    c.    sponte    foctis.     Esse     autem     hujusmodi 
"  qii  uidam   confessiones,  neutiquam  negari    poterit."   After 
•  his  acknowledgment,  corroborated  »^  it  is  by  other  argu- 

'I'  nicnts 


i 


..•mmmmimmm 


J26  APPENDIX. 

ments  used  by  Mr.  Sclden,  many  will  think  his  positions 
completely   established.    The  chief  objection  made  by  Byn- 
kershoek  to  the  right  of  the  crown  of  England  to  the  domi- 
nion of  the  sea  is,  the  want  of  uninterrupted  possetision,  as 
he  terms  it,  of  that  dominion.  "  So  long  as  a  nation  has  pos- 
u  session  of  the  sea,  just  so  long,"  says  Bynkershoek,  «  she 
«  holds  its  dominion.    But  to  constitute  this  possession,  it  is 
u  necessaiy  tnat  her  navies  should  keep  from  it  the  navies  of 
u  all  oilier  nations,  and  should  themselves  completely  and 
«  incessantly  navigate  it,  avowedly  in  the   act   or  for   the 
«  purpose  of  asserting  her  sovereignty  to  it."  This,  he  con- 
tends, has  not  been  done  by  the   English;  on  this  ground 
therefore  he  objects  to  the  right  of  dominion  of  the  Enghsh 
sea ;  and  on  the  same  ground  he  objects  to  the  right  of  the  Ve- 
netians to  the  dominion  of  the  Adriatic,  and  to  the  right  ol 
the  Genoese  to  the  dominion  of  the  Ligustic.  But  this  seems 
carrying  the  matter  too  far.  If  it  be  admitted,  (of  which  there 
unquestionably  are  many  instances),  that  the  sovereign  pow- 
er of  a  state  may  restrain  her  own  subjects  from  navigating 
particular  seas,  she  may  also  engage  for  their  not  doing  it,  in 
her  treaties  with  other  nations.    It  can  never  be  contended, 
that  after  such  a  treaty  is  entered  into,  the  acts  of  possession 
mentioned  by  Bynkershock  are  necessary  to  give  it  effect 
and  continuance,  unless  this  also  makes  a  part  of  the  treaty. 
It  is  sufficient,  if  the  acts  of  possession  are  so  often  repeated, 
as  is  necessary  to  preventthe  loss  of  the  right,  from  the  want 
of  exercise  of  it.  In  those  cases,  therefore,  where  the  treaty 
itself,  establishing  the  exclusive  dominion  we  are  speaking 

of. 


^'-r  -mi-^vmiMS^ 


s  positions 
ie  by  Byn- 
1  the  domi- 
iseiision,  as 
on  has  pos- 
loek,  "  she 
ession,  it  is 
le  navies  of 
pletely  and 
or  for   the 
lis,  he  con- 
this  ground 
the  English 
It  of  the  Ve- 
the  right  of 
it  this  seems 
■  which  there 
'ereign  pow- 
tn  navigating 
>t  doing  it,  in 
e  contended, 
of  possession 
rive  it  effect 
if  the  treaty, 
ftcn  repeated, 
from  the  want 
;re  the  treaty 
are  speaking 
of. 


APPENDIX.  127 

oi,  is  procUiced,  the  continued  and  uninterrupted  possession 
mentioned  by  Bynkershock  cannot  be  necessary.    But  public 
rights,  even  the  most  certain  and  incontestible,  dcjiend  often 
on  no  other  foundations  than  presumption  and  usage.     The 
boundaries  of  territories  by  land,  freciuently  depend  on  no 
other  Utle.  Then,  if  Bynkershoek  be  right  in  his  position, 
that  the  sea  is  susceptible  of  dominion,  should  not  mere  pre- 
scription and  usage  in  this,  as  in  any  other  case,  be  sufficient 
to  constitute  a  right?  Upon  what  ground  are  the  continued 
and  uninterrupted  acts  of  possession,  mentioned  by  BynUer- 
shoek,  required  to  constitute  a  title  in  this,  more  than  in  any 
other  case  of  public  concern  ?    If  this  be  thought  a  satisfactory 
answer  to  the  objection  made  by  Bynkershoek,  the  remaining 
difference  between  him  and  Mr.  Selden,  respecting  the  right 
of  the  British  monarch  to  this  splendid  and  important  royalty 
^v^\]  be  inconsiderable.    It  is  to  be  added,  that  Mr.  Seldcn's 
treatise  was  thought  so  important  to  the  cause,  in  support  of 
which  it  was  written,  that  a  copy  of  it  was  directed  to  be  de- 
posited in  the  Admiralty.    Those  who  wish  to  procure  it, 
in  an  English  translation,  should  prefer  the  translation  pub- 
lished  in  1633,  by  a  person  under  the  initials  of  J.  H.  to  that 
by  Marchemont  Needham.  On  this  subject  (with  the  excep- 
tion of  Sir  Philip  Medows)  subsequent  writers  have  done 
little  more  than  copy  from  Selden.    The  subject,  however, 
is  far  from  being  exhausted.    The  system  adopted  by  Sir 
Philip  Medows,  in  his  Observations  concerning  the  Dominion 
and  Sovereignty  of  the  Seas,  printed  in   1,689,  is  more  mode- 
rate than  Mr.  Selden's.  He  calls  in  question,  at  least  indi- 

recllv, 


**wnj*lV^'^i-v*aiK  vjiTs 


"  *v^J^^- i^jipT^i."'.,^l.lis;^SS5jM(ti.5B^  ;L*;^  Jy  ^^y^i^tlUAtfl'. 


■-:?s~-,;ry(K*.w^»*^si«^iv,*iiW.,Vi^^U^.,V: 


»wn^  -piaww— wa.a 


J28  APPKNDIX. 

rcclly,  a  material  part  of  Mr.  ScUlen's  positions,  and  place, 
the  ri.'htof  the  kings  of  England  to  the  dominion  of  the  sea 
upon  a  much  narrower  ground.    He  confines  it  to  a  right  ol 
excluding  all  foreign  ships  of  war  fron.  passing  upon  any  of 
the  seas  of  England,  without  special  licence  for  that  purpose 
first  obtained;  in  the  sole  marine  jurisdiction,  within  those 
seas;  and  in  an  appropriate  fishery.  He  denies  that  the  salu- 
taUon  at  sea,  by  the  flag  and  topsail,  has  any  relation  to  the  do- 
minion  of  the  sea ;  and  he  asserts,  that,  it  was  never  covenant- 
cd  in  any  of  the  public  treaties,  except  those  with  the  United 
Netherlands,  and  never  in  any  of  these  till  the  year  1654;  he 
contends  it  is  not  a  recognition  of  sovereignty,  but  at  most  an 
acknowledgment  of  preeminence.  His  t.eatise  is  deservedly 
held  in  great  estimation." 


NOTE  II. 

THE  ALPS  begin  with  Col  del  Angentera,  which  lies  t» 

the  west  of  a  supposed  line  from  Monaco  to  the  Mons  V  isu- 

lus,  or  Monte  Viso.  Thence,  they  proceed,  in  a  semicircular 

Unl  of  about  500  miles,  first  on  the  south-eastern  limits  of 

France,  afterwards  on  the  southern  limits  of  Swisserland,  the 

Orisons,  and  the  Tyrol,  and  then  on  the  western  limits  of  Sty- 

ria,  Carinthia  and  Carniola  to  the  Sinus  Flanaticus,  or  the 

Chilph  of  Corncro  on  the  Hudriatic. 

1.  Tho 


APPENDIX. 


129 


ind  places 
of  the  sea 
a  right  of 
pon  any  of 
lat  purpose 
ithin  those 
lat  the  salu- 
)n  to  the  do- 
;r  covenant- 
ithe  United 
ar  1654;  he 
It  at  most  an 
}  deservedly 


which  lies  t« 
Mons  V'isu- 
i  semicircular 
tern  limits  of 
dsserland,  the 
limits  of  Sty- 
laticus,  or  the 

1.  The 


iS^^& 


1.  The  Alfxes  Maritime  take  their  name  from  the  sen  of 
Genoa,  and  extend  from  it  up  to  Mons  Visuhis  or  Monte 
Viso.  The  most  noted  mountains  in  this  part  of  the  Alps 
are  the  Camcilon  and  the  Tendfi. 

2.  The  Cottian  Mfm  reach  from  Monte  Viso  to  Mount 
Cenis ;  they  received  their  appellation  from  a  territory  of 
that  name,  of  which  Suza  was  the  metropolis ;  they  contain 
the  Mons  Matrona,  or  the  Mont  Genevre,  where  the  river 
Durance  springs. 

3.  The  Mfiea  Grata  extend  over  Le  Petit  St.  Bernard, 
the  scene  of  the  martyrdom  of  the  Theban  legion,  to  the 
Mons  Jovis,  or  Le  Grand  St.  Bernard.  Hitherto  the  direction 
of  the  Alps  is  to  the"  north. 

4.  On  the  northern  side  of  that  part  of  the  Rhone,  whicli 
flows  over  the  Valais  into  the  lake  of  Geneva,  are  the  Jlfiex 
Helvetica  i  on  its  southern  side  are  the  jll/ie  Penninx,  tlic 
eastern  chain  of  which  is  called  Mfiea  Lefiontince :  they  ex- 
tend to  the  Mons  Summus,  or  Mont  St.  Gothard. 

5.  The  Mfiea  Rhxticx  extend  from  Mont  St.  Gothard  over 
the  Mons  Adula,  or  the  Adule,  where  the  two  fountains  ol 
the  Rhine  arise,  to  the  source  of  the  Drave.  A  motmtainous 
country  to  the  south  of  them,  where  the  town  of  Trent  lies, 
was  called  the  Mfies  Tridentinx. 

6.  The  jll/tea  Mricte  lie  on  the  north  of  the  Drave,  and 
extend  over  parts  of  Austria,  Styria,  and  Carinthia ;  not  Au 
from  the  close  of  them  the  Alfiea  Pannonica  or  Kahlemburgh 
mountains  rise.  The  M/iea  Baatamka  are  the  Carpathian 
mountains,  the  boundary  of  Hungary  on  the  norlli  and  east. 

7.  The  Al/iea  Camica  lie  on  the  south  of  the  Drave,  and 
reach  to  Nauportus  or  Leyback,  where  the   Alpine  heights 

of 


130  APPENDIX. 

of  Italy  properly  close.  Two  ranges  of  mountains  proceed 
from  them ;  the  Allies  Venette,  which  extend  into  the  Vene- 
tian possessions  on  the  Terra  Firma,  and  the  Al/ies  Julia 
which  are  spread  over  the  country  from  I'orum  Julii,  or 
Friuli,  to  the  eastern  extremity  of  the  Hadriatic. 

Where  the  Alpes  Caniicx  end,  the  Mona  Mbim  begins : 
the  Jtljies  Sebiang,  or  the  W  elebitchian,  or  Murlakan  moun- 
tains proceed  from  it,  and  extend  southerly  in  a  line  of  about 
•lOO  miles  over  Illyricum  to  Mona  Orbelus,  whence  they 
branch  into  the  Rhodope  and  Haemus. 

Such  is  the  chain  of  the  Alps.  The  Jfienninea  are  of  equal 
celebrity.  They  rise  in  the  Col  della  Tenda;  after  stretching 
on  the  east  of  the  supposed  line  from  the  Portus  Monxci  to 
Mons  Vesulus,  along  the  Gulph  of  Genoa,  at  no  great  dis- 
tance from  the  coast,  they  proceed  eastwardly  to  the  centre 
of  Italy,  and  afterwards  to  the  south,  always  approaching  near- 
er to  the  eastern  than  to  the  western  coast.  After  they  arrive  at 
the  MoasGargarous,  they  take  acouth-wcsternly  direction,  and 
reach  the  Calabrian  extremities  of  Italy.  This  account  of  the 
Alps  is  taken  from  Cluveriua'a  Ital.  Ant.  lib.  1.  ch.  30,  31,  32  ; 
Cellariua'a  Geog.  Ant.  lib.   2;  Busching'a  Geografihy ;   Cliau- 
chard'a  Math  tmbliahed  by  Stockdale ;  Bergier'a   Hiatoire  des 
Granda  Chemins  de  I'Jim/tire  Komain,  2  vol.  4to,  Bruaaellea, 
.1738;  and  Mr.  Pinkerton'a  Geograj.hy,  a  work  of  great  merit. 


NOTE  III. 

THE  following  account  of  the  PRiETOR's  JUDICIAL 
POWER,  and  its  variations,  is  given  by  Doctor  Bevcr, 

in 


"Sycsi 


Ufiea  Julix 
ti  Julii,  or 


M«  begins : 


kan  moun- 
ne  of  about 
lence  they 

re  of  equal 

r  stretching 
Monxci  to 
»  great  dis- 
>  the  centre 
ching  near- 
ley  arrive  at 
irection,  and 
count  of  the 
.  30,31,32; 
fihy ;   ChaU' 
Histoire  de» 
,  BruaselleSf 
'great  merit. 


JUDICIAL 

DCtor  Bevcr, 

in 


APPENDIX.  131 

in  his  History  of  the  Legal  Polity  of  the  Roman  State,  B. 
ii.  c.  6. 

"  Originally,  no  more  than  one  prsetor  was  appointed ; 
but,  as  the  splendour  and  reputation  of  this  illustrious  city 
daily  drew  to  it  a  vast  conflux  of  strangers,  the  judicial  bu- 
siness increased  beyond  the  power  of  a  single  magistmte  to 
dispatch.  This  demanded,  therefore,  the  creation  of  a  second, 
to  preside  over  the  causes  of  foreigners;  from  whence  he 
was  called  "  Praetor  Peregrinus,"  to  distinguish  him  from 
the  former,  who,  from  the  particular  objects  of  his  magistraf 
cy,  was  styled  «  Urbanus."  When  the  empire  received  a  fur- 
ther augmentation  from  the  conquered  provinces,  each  of 
these  was  allowed  its  provincial  judge,  with  similar  title  and 
power. 

Another  centuiy  introduced  a  new  refinement  upon  this 
institution.  As  Uie  objects  of  judicature,  both  criminal  and 
civil,  multiplied  apace,  and  a  great  variety  of  new  causes 
arose,  very  distinct  in  their  nature  from  each  other,  for  the 
more  easy  and  expeditious  adr.iinistration  of  justice,  it  was 
found  necessaiy  to  throw  them  into  distinct  classes,  called 
«<  Qusstioncs,"  and  to  assign  particular  jurisdictions  and 
judges  to  each,  who  were  intituled  Prstors  and  Quaesitors. 
These  were  obliged  to  exercise  their  respective  jurisdictions 
within  the  city  for  the  space  of  one  year,  after  which  they 
were  dismissed  into  their  several  provinces,  under  the  cha- 
ra.  ter  of  Propraetors.  These  great  ofiictrs,  of  whatever  rank 
or  denomination,  were  first  elected  by  the  people,  in  the 
"  comitia  centuriata ;"  but  the  right  of  assigning  them  to 
their  particular  provinces  belonged  to  the  senate. 

The 


^i 


132  APPENDIX 

The  pi-jEtoriun  edicts,  which  constitute  that  branch  of  the 
old  civil  law  now  under  consideration,  were  certain  rules  ov 
forms,  published  by  cvei7  praetor  at  the  entrance  upon  his 
office,  on  the  calends  of  January,  signifying  the  methods 
whereby  he  p-oposed  to  administer  justice  during  that  year. 
These  were  hung  up  in  the  public  court  in  a  white  table,  for 
the  inspection  of  suitors  and  practitioners;  but  the  authority 
cf  them  lasted  no  longer  than  the  office  itself,  unless  they  re- 
ceived a  fresh  ratification  from  the  successor,  and  in  that 
case  they  were  called  "  Edieta  Translatitia." 

The  praetor  had  no  power  to  abrogate  or  alter  the  laws, 
but  only  to  temper  them  with  equity,  to  apply  them  to  the 
particular  cases  before  him,  according  to  his  own  ideas  of 
justice,  and  to  supply  whatever  was  wanting,  to  give  them 
their  full  and  proper  effect.  His  edicts,  therefore,  were  consi- 
dered only  as  the  voice  of  the  law,  but  not  law  in  its  most 
comprehensive  meaning,  unless  they  happened  to  be  adopted 
and  continued  by  succeeding  magistrates;  under  which  qua- 
lified chai-acter  only  they  are  considered  by  Justinian  him- 
self.   But  notwithstancUng  their  inferiority  of  rank  in  the 
scale  of  legislation,  they  were  yet  held  in  the  highest  esteem 
by  some  of  the  greatest  princes  and  statesmen  in  after  times, 
and  by   none   more   than  himself,  as  appears  from  his  in- 
serung  so  large  a  r"mber  of  them  in  the  Digest. 

In  process  of  time,  indeed,  as  the  age  grew  more  corrupt, 
and  as  these  judges  were  more  intent  upon  their  own  private 
views  and  emoluments  than  upon  a  punctual  and  faithful  ad- 
ministration  of  justice,  they  were  very  apt  to  vary  even  from 
their  own  edicts,  when  it  happened  to  suit  the  convenience 

and 


^^si^^^B^i 


■J«8s*i»S5;;  ■ 


brdiich  of  the 
ertain  rules  or 
•ance  upon  his 
f  the  methods 
iring  that  year 
white  table,  for 
It  the  authority 
unless  they  re- 
)r,  and  in  thai 


APPENDIX.  J  33 

und  interest  of  their  friends  or  themselves.  This  opened  a 
door  to  many  shameful  acts  of  injustice,  and  once  more 
called  forth  that  truly  patrioUc  tribune,  Caius  Cornelius,  un- 
der whose  influence  a  law  was  enacted,  to  oblige  the  pr«tors 
to  adhere  to  certain  established  rules,  and  not  to  depart  from 
those  which  they  themselves  had  laid  down,  at  the  entrance 
upon  their  respective  magistracies." 


alter  the  laws, 
y  them  to  the 
is  own  ideas  of 
,  to  give  them 
are,  were  consi- 
aw  in  its  most 
ed  to  be  adopted 
nder  which  (lua- 
Justinian  him- 
of  rank  in  the 
!  highest  esteem 
n  in  after  times, 
irs  from  his  in- 
gest. 

w  more  corrupt, 
heir  own  private 
1  and  faithful  ad- 
3  vary  even  from 
the  convenience 
and 


NOTE  IV. 

THE  following  account  of  THE  MODES  OF  QUOTING 
THE  CIVIL  AND  CANON  LA\\\i  is  taken  from  Dr. 
Halitfax'H  Analysis  of  the  Roman  Civil  Law,  Camb.  1775, 
Note  on  page  2. 

It  may  not  be  amiss,  for  the  sake  of  beginners,  to  explain 
here  the  method  of  quoting  the  several   parts,  which  now 
compose  the  Corpus  Juris  Romano-Civilis.  The  Institu- 
TiONs  are  contained  in  Four  Books:  each  Book  is  divided 
into  Titles;  asid  each  Title  into  Paragraphs;  of  which  the 
first,  described  by  the  Lettera  fir.  or  Mncifi.  is  not  numbered. 
The  Digests  or  Pandects  are  in  Fifty  Books:  each  Book 
is  distributed  into  Titles;  each  Title  into  Laws;  and,  very 
frequently.  Laws  into  Paragraphs,  of  which  the  first  is  not 
numbered.  The  Code  is  comprized  in  Twelve  Books;  each 
of  which  is  divided,  like  the  Digests,  into  Titles  and  Laws ; 
and,  sometimes.  Laws  into  Paragraphs.  The  Novels  are  dis- 
tinguished bjr  their  Number,  Chapter  and  Paragraph. 

^'  The 


m- 


134  APPENDIX. 

The  old  way  of  quoting  was  much  morr  troublesome,  by 
only  mentioning  the  Number,  or  initial  Words,  of  the  Para- 
graph or  Law,  without  expressing  the  number  either  of  Book 
or  Title.  Thus,  §  i>i  advermta   12  lm\  dr  J'fufitih  means  the 
12th  Paragraph  of  the  Title  in  the  Institutions  d'-  JVu/i:ih, 
which  paragraph  begins  with  the  Words  «  adveraun  i  and 
which  a  motlem  Civilian  would  cite  thus,  I.  I.  10.  12.    So  /. 
30  n.  dr  R.  J.  signifies  the  .30th  Law  of  the  Title  in  the  Di- 
gests df  Regulis  Juiin:  according  to  the  modern  way,  thus, 
D.  .0.  ir.  .-JO.  Again,  /.  5.  §  3.  J.  de  Jurejur.  means  the  3d 
paragraph  of  the   .".th  Law  of  the   Title   in  the  Digests  de 
Jurejurando:  better  thus,  D.  12.  2.  5.  3.  And  here  note,  that 
the  Digests  are  sometimes  referred  to,  as  in  the  last  instance, 
by  a  double/;  and  at  other  times  by  the  Greek  n  or  «.  [/] 

The  method  of  quoting  the  Roman  Canon  Law  is  as  fol- 
lows. The  Decree,  as  said  above,  consists  of  Three  Parts; 
of  which  the  first  contains  101  Distinctions,  each  Distinction 
being  sub-divided  into  Canons:  thus  1  dUt.  c.  3.  Lrx  (or  1 
d.  Lex)  is  the  first  Distinction,  anff  3d  Canon,  beginning  with 
the  word  Lex.  The  second  part  of  the  Decree  contains  36 
Causes ;  each  Cause  comprehending  several  Questions,  and 
each  Question  several  Canons:  thus  3.  nu.  9.  c.  2.  Cavrant 
is  Cause  the  3d,  Question  the  "^th,  and  Canon  the  2d,  begin- 
ning with  Caveant.  The  third  part  of  the  Decree  contains  i 

Distinctions,  and  is  quoted  as  the  first  part,  with  the  addition 
of  the  words  de  Con  sec  rati  one,  thus  de  Coruecr.   diat.  2.  can. 

Quit'  or/tua  (or  can.  Quia  ro  pus  35  dist.  2.  d.  Con«e'cr.) means 

[/I  The  mavkiT  by  wliicli  the  DiKests  are  now  generally  quoted, 
ovlginated  From  an  error  of  the  first  law  printers,  who  mistook  the 
C'.rcck  II  li.-istih  v.iitlenfor  adoiiWe  fl'. 

the 


lublesome,  by 
I,  of  the  I'ara- 
either  of  Hook 
»V«  means  the 
»n»  dr  JVu/i.iin, 
idveroun ;  and 

10.  12.  So  /. 
'itle  in  the  Di- 
em way,  thus, 
means  the  3d 
the  Digests  de 
here  note,  that 
le  last  instance* 
k  n  or  «.  [/] 

Law  is  as  fol- 
f  Three  Parts; 
ich  Distinction 
.  3.  Lfx  (or  1 
beginning  with 
ree  contains  36 
Questions,  and 
».  f.  2.  Cavrant 
I  the  2d,  begin- 
;ree  contains  i 
ith  the  addition 
:r.  (list.  2.  can. 
Con«tfcr.)  means 

generally  quoted, 
who  mistook  the 


APPENDIX.  135 

the  3d  Distinction,  and  the  35th  Canon,  of  the   Treatise  d, 
Connecraimu;  which  Canon  begins  with  Quia  cor/im. 

The  Dkcretals  are  in  Three  Parts;  of  which  the  first 
contains  Gregory's  Decretals  in  5  Books;  each  Ixwk  being 
divided  into  Titles,  and  each  Title  into  Chapters :  And  these 
are  cited  by  the  name  of  the  Title,  and  the  number  of  the 
CJjapter,  with  the  addition  of  the  word  Extra,  or  the  capital 
letter  X :  thus  r.   3.  Kxtra  de  Usuris  is  the  3d  Chapter  of 
the  Title  in  Gregory's  Decretals,  which  is  inscribed  de  Uau- 
ri»i  which  Title,  by  looking  into  the  Index,  is  found  to  be 
the  19th  of  the  5th  Book.  Thus  also,  c.  cum  contingat  36.  X. 
de  Offic.  is-  Pot.  Jud.  Del.  is  the  36th  Chapter,  beginning  with 
Cum  contingat,  of  the  Title,  in  Gregory's  Decretals,  which  is 
inscribed  de  Officio  et  Potestaie  Judicin  Delegati;  and  which, 
by  consulting  the  Index,  we  find  is  the  29th  Title  of  the   1st 
Book.  The  Sixth  Decretal,  and  the  Clementine  Constitutions, 
each  consisUng  of  5  Books,  arc  quoted  in  the  same  manner 
as  Gregory's  Decretals;  only,  instead  of  F.xtra  or  X,  there 
is  subjoined  in  sexto,  or  in  6.  and  in  Clementinis  or  in  Ckni. 
according  as  either  part  is  referred  to:  thus,  c.  «i  ^-^atio^ie  5. 
de  Uracri/it.  in  6.  is  the  5th  Chapter,  beginning  with  Si  gra- 
tioae,  of  the   Title  de  Rencri/itia,  in  the   6th  Decretal;  the 
Title  so  inscribed  being  the  3d  of  the  1st  Book:  And  Clem. 
1.  de  Sent,  et  Re  Judic.  (or  de  Snit.  .i  R.  J.  ut  caliimnii,.  in 
Clem.)  (or  c.  ut  calumniii,.  1.  de  sent,  et  R.  J.  in  Clem.)  is  the 
1st  Chapter  of  the  Clementine  Constitutions,  under  the  Title 
de  Srn.entid  et  '-'r  Judicata;  which   Chapter  begins  with  Uf 
calumniin,  and  bcjfmgs  to  the  I  Ith  .Title  of  the  2d  Book, 

•  the 


the 


m" 


r 


135  APPENDIX. 

The  ExTliAVAaAMTiiof  John  the  33d  arc  coiiUtncd  in  one 
Book,  divided  into  U  Titlen:  thus  Hxtravug.  M  Conditorem. 
Joh.  22.  df  V.  S.  means  the  Chapter,  beginning  with  ^  Con- 
(Ulorrm,  of  the  Extravagantsof  John  i2d;  Title,  de  Vrrborum 
Stgmjicatiombut.  Lastly,  the  ExtravaRants  of  later  Popes  are 
called  Communm:  being  distribute*!  into  5  Books,  and  these 
again  into  Titles  and  Chapters :  thus  Exiravafc-  Commun.  c. 
Salvator.  <h  Fr<xbend.  is  the  Chapter,  bcKim"»KW"h  Halvator. 
imongthe  Mxtravagantes  Communeti  Title,  de  Pr*bendi». 


THE  END. 


mmmfmm''*'i»'^' 


incd  in  one 
Cunditorem. 
ith  -^  Con- 
le  VrrborutH 
!r  Popes  ure 
I,  and  these 
Comniun.  c. 
ith  Salvator, 
"rubendiii. 


1^' 


1 


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M 


II 


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